Trinova Corporation and Subsidiaries - Page 13

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               Against the foregoing background, we proceed to consider the           
          positions of the parties.  Relying on the position we took in               
          Walt Disney Inc. v. Commissioner, supra, petitioner contends that           
          the regulations, section 1.1502-3(f)(2) and (3), and Example (5)            
          in particular, Income Tax Regs., are dispositive and that the               
          step transaction doctrine has no application herein.  Respondent,           
          relying on Rev. Rul. 82-20, supra, and the status accorded it by            
          the Courts of Appeals for the Second and Ninth Circuits in                  
          Salomon, Inc. v. United States, supra, and Walt Disney Inc. v.              
          Commissioner, supra, argues in effect that Rev. Rul. 82-20,                 
          supra, operates independently of Example (5) and should control             
          and that, in any event, the application of the step transaction             
          doctrine should result in the recapture by petitioner of the                
          investment tax credit.  We agree with petitioner.                           
               With all due respect, we disagree with both the result and             
          the reasoning of the Courts of Appeals and adhere to the position           
          we took in Walt Disney Inc. v. Commissioner, 97 T.C. 221 (1991).            
          We think that the fact that the transfer of the assets and the              
          transfer of the stock occurred in the same, rather than                     
          different, taxable years does not provide a meaningful basis for            
          distinguishing Rev. Rul. 82-20, supra, from Example (5) of the              
          regulations.  Indeed, as we have already pointed out, see supra             
          pp. 9-10, we specifically refused to give weight to this element            
          in Walt Disney Inc. v. Commissioner, supra.  Our continued                  
          adherence to this point of view is reinforced by the fact that              




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