The Board of Trade of the City of Chicago and Subsidiaries - Page 21

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          performed for a full membership transferee who paid $1,000.                 
          Petitioner, in some instances, assesses the same fees despite               
          substantial differences in the amounts of services.  For                    
          instance, the transfer fee for an intrafamily transfer of a full            
          membership, which requires few of the services listed, is                   
          normally $1,000, the same transfer fee payable in connection with           
          an outright sale of a full membership, which requires the entire            
          range of services.                                                          
               In contrast to the transfer fees, the application fees paid            
          in connection with applications for CBOT memberships are directly           
          related to the services performed in connection with the                    
          applications.  Short-form applications, which obviously require             
          fewer services, require a lower fee than full applications.  The            
          application fees are based on the services rendered and, as such,           
          are treated as ordinary income.  On the other hand, the transfer            
          fees are not based on the functions performed.  Rather, the                 
          transfer functions are performed incidentally to the paying of              
          the transfer fee.  The lack of correlation between the different            
          transfer fees and the functions performed by the Member Services            
          Department supports the conclusion that the transfer fees are not           
          payments for or in consideration of these services.                         
               The parties agree that the payor’s motive controls whether a           
          payment is a contribution to capital, whether the payor is a                
          nonshareholder, see United States v. Chicago, B & Q. R.R., 412              
          U.S. 401, 411-413 (1973); Brown Shoe Co. v. Commissioner, 339               




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