- 29 - most significant factor is the characterization of the parties to the transaction in their written agreement. Both petitioner and the "purchasers" of the properties in question had a significant interest in that characterization. The "sale" characterization used in the documents for underlying transactions gave the purchasers ownership which was potentially important for purposes of the purchasers' deduction of interest and real estate taxes. If petitioner prevails, those tax benefits, and possibly others, would be jeopardized. In similar situations, we have required taxpayers who attempt to recharacterize the written terms of a transaction to adduce strong proof that the written contract was without economic substance. North American Rayon Corp. v. Commissioner, 12 F.3d 583 (6th Cir. 1993), affg. T.C. Memo. 1992- 610; Commissioner v. Danielson, 378 F.2d 771, 775 (3d Cir. 1967), vacating and remanding 44 T.C. 549 (1965); Ullman v. Commissioner, 264 F.2d 305, 308 (2d Cir. 1959), affg. 29 T.C. 129 (1957). Petitioner has failed to produce such strong proof. Based on all of the above facts and circumstances, we hold that the cluster home or condominium transactions were sales. In light of this, petitioner had no depreciable interest in the cluster homes or condominiums, and respondent properly disallowed deductions for depreciation. Weiss v. Wiener, 279 U.S. 333 (1929); Taube v. Commissioner, 88 T.C. 464 (1987). Petitioner is also taxable on the net gain on the sales transactions. See supra notes 2, 13. Section 6661 Addition to Tax Section 6661 provides for an addition to tax for thePage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011