James H. Swanson and Josephine A. Swanson - Page 28

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          to Trust No. 234 was a sham transaction.  Respondent, on the                
          other hand, argues that such a determination was reasonable,                
          particularly in light of the postsale use by petitioners and                
          their daughter.                                                             
               A "sham" transaction is one which, though it may be proper             
          in form, lacks economic substance beyond the creation of tax                
          benefits.  Karr v. Commissioner, 924 F.2d 1018, 1022-1023 (11th             
          Cir. 1991), affg. Smith v. Commissioner, 91 T.C. 733 (1988).  In            
          the context of a sale transaction, as here, the inquiry is                  
          whether the parties have in fact done what the form of their                
          agreement purports to do.  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.  Commissioner v.              
          Brown, 380 U.S. 563, 570-571 (1965).  In deciding whether a                 
          particular transaction constitutes a sale, the question of                  
          whether the benefits and burdens of ownership have passed from              
          seller to buyer must be answered.  This is a question of fact               
          which is to be ascertained from the intention of the parties, as            
          evidenced by the written agreements read in light of the                    
          attendant facts and circumstances.  Haggard v. Commissioner, 24             
          T.C. 1124, 1129 (1955), affd. 241 F.2d 288 (9th Cir. 1956).                 








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