David H. and Suzanne Hillman - Page 20




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          expense of the partnerships for the services provided by SMC.               
          The essence of these transactions is that petitioner, through               
          entities in which he held an interest, earned and paid the same             
          management fees; i.e., moved management fees from his “passive              
          pocket” to his “nonpassive pocket”.  Under those circumstances,             
          the partnerships’ management fee deductions should be offset8               
          against the management fee payments (income) received by SMC.               
          There was no net accretion of wealth with respect to the                    
          management services provided from SMC to the partnerships.  Under           
          respondent’s determination, petitioners would be required to                
          recognize income even though respondent does not dispute that, in           
          effect, petitioner has simply paid a management services fee to             
          himself.  Respondent has identified no difference between the               
          circumstances in this case and those set forth in the proposed              
          regulation and the legislative history permitting an offset where           
          a taxpayer’s self-charged transaction involves interest (a                  
          lending transaction).                                                       
               Respondent’s position denying the offset to petitioners is             
          not only contrary to the legislative history and intent of                  
          Congress, but it does not appear to be based on any established             
          tax policy or any reason other than the failure to promulgate a             
          regulation.  Again, we note that respondent has not articulated             



               8 Any offset must, of course, be limited to petitioners’               
          ownership percentages.                                                      





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