- 23 - for what it now contends was the substance of the transaction. Comdisco, Inc. v. United States, 756 F.2d 569, 578 (7th Cir. 1985); Estate of Weinert v. Commissioner, 294 F.2d 750, 755 (5th Cir. 1961), revg. and remanding 31 T.C. 918 (1959); FNMA v. Commissioner, supra at 426. Having decided that petitioner is bound by the form of the transaction and that, for purposes of section 884, the advances in issue were debt as opposed to equity, we now consider petitioner's alternate arguments. Because the accrued interest has not been paid to the related party, petitioner contends that section 267 prevents its deduction. Petitioner argues that interest must be deductible for the excess interest tax to apply. Petitioner's Proposed Deductibility Requirement--Section 267(a)(2) generally limits the deductibility of interest by the payor until it is included in the related payee's gross income. Section 267(a)(3) empowers the Secretary to promulgate regulations to apply the matching provisions of section 267(a)(2) to include instances where the payee is a foreign person (entity). In particular, petitioner relies on section 1.267(a)- 3(b)(1), Income Tax Regs.11 Petitioner argues that section 11 Petitioner acknowledges and we note that the regulation relied upon was published Dec. 31, 1992, in T.D. 8465, 1993-1 C.B. 28, a date subsequent to the years under consideration. Petitioner, however, points out that the Commissioner had published the essence of that interpretation in Notice 89-84, 1989-2 C.B. 402, for taxable years beginning after Dec. 31, 1983.Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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