Charlotte Aircraft Corporation and Subsidiaries - Page 11

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            characterization of the transaction herein.  Resolution of                                   
            whether a transaction is a loan depends in part on the intent of                             
            the parties.  Litton Bus. Sys. Inc. v. Commissioner, 61 T.C. 367,                            
            377 (1973).  The value of a trial with full opportunity to                                   
            observe the parties and their evidence is obvious.  This is                                  
            especially so when the question of intent is present.  Preece v.                             
            Commissioner, 95 T.C. 594 (1990); Shiosaki v. Commissioner, 61                               
            T.C. 861, 863-864 (1974).  A conclusion as to a taxpayers' intent                            
            should not be reached without the benefit of a trial in which the                            
            demeanor of the witnesses can be observed and their credibility                              
            can be weighed.  Shiosaki v. Commissioner, supra, at 863-864.                                
                  In short, the issue is not ripe for summary adjudication.                              
            Petitioner's claim is, in effect, that the documentation controls                            
            the characterization.  In order to grant petitioner's motion, we                             
            would have to accept petitioner's interpretation of the documents                            
            relating to the transaction, petitioner's understanding of the                               
            transaction as the understanding of all the parties, and                                     
            petitioner's explanation of any apparent discrepancies.  By                                  
            petitioner's reasoning, Gregory v. Helvering, 293 U.S. 465                                   
            (1935), should have been resolved on a motion for summary                                    
            judgment because the paperwork documented a reorganization.  It                              
            is the substance of the transaction and not the form which must                              
            control the consequences for Federal tax purposes.  University                               
            Country Club, Inc. v. Commissioner, 64 T.C. 460, 471 (1975).                                 






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