12
context was negated by application of section 1.1502-
32(b)(2)(iii), Income Tax Regs., and section 1.1502-32T(b),
Temporary Income Tax Regs., supra, the later section being
promulgated on March 14, 1989, and applicable to distributions
described in section 301 that are declared in taxable years for
which the due date (without extensions) of the Federal income tax
return is after March 14, 1989. We are not bound by a concession
if we conclude that it is contrary to the facts. Weinberg v.
Commissioner, 44 T.C. 233, 244 (1965), affd. in part, revd. in
part and remanded sub nom. Commissioner v. Sugar Daddy, Inc., 386
F.2d 836 (9th Cir. 1967). We find that S&B paid no dividend and
that Thor and the Buyer agreed to cancel the $1,245,880.36 debt
payable to S&B from Thor as part of the purchase price of the S&B
stock. Respondent's concession made without regard to, and
contrary to, the evidence in this case will not change our
conclusion. It is therefore unnecessary to consider the validity
of the cited regulations. We hold that S&B never declared or
paid a dividend to Thor.
Petitioner argues that S&B declared a dividend on April 29,
1988, as memorialized in the minutes of S&B's board meeting on
November 14, 1988. We find that S&B did not declare a dividend.
None of the relevant financial documents indicate that S&B
declared a dividend. S&B's financial statements of July 31,
1988, do not reflect any dividends payable as of that date. The
parties executed the SPA on October 3, 1988, and any dividend
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