Theodore B. Bare - Page 8




                                        - 7 -                                         
          deferral was December 10, 1995.  Respondent’s determination                 
          resulted in a reduction of petitioner’s capital losses in 1993,             
          1994, and 1995.  Petitioner contends that he purchased the Bowmen           
          Lane property and used it as his principal residence within the             
          required timeframe.                                                         
               We first consider whether petitioner purchased the Bowmen              
          Lane property.  The facts and circumstances of petitioner’s case            
          reveal that the transaction between him and his wholly owned S              
          corporation was not a bona fide sale.  See Scherr v.                        
          Commissioner, T.C. Memo. 1993-87.                                           
               The "incidence of taxation depends upon the substance of a             
          transaction" rather than its mere form.  Commissioner v. Court              
          Holding Co., 324 U.S. 331, 334 (1945).  A transaction lacking               
          economic substance may be disregarded for tax purposes.  See                
          Knetsch v. United States, 364 U.S. 361, 365-366 (1960); Braddock            
          Land Co. v. Commissioner, 75 T.C. 324 (1980).  In the context of            
          a sale transaction, the inquiry is whether the parties have in              
          fact done what they purport to do in the form of their agreement.           
          See Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221,               
          1237 (1981).                                                                
               The term "sale" is given its ordinary meaning for Federal              
          income tax purposes and is generally defined as a transfer of               
          property for money or a promise to pay money.  See Commissioner             
          v. Brown, 380 U.S. 563, 570-571 (1965).  The determination of               






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011