Martin Ice Cream Company - Page 3

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                  Frank Agostino, Alan G. Merkin, Mary Ann Perrone, and                                 
            Susan M. Flynn, for petitioner.                                                             
                  Patricia Y. Taylor and Clare W. Darcy, for respondent.                                
                  BEGHE, Judge:  Respondent determined the following                                    
            deficiency and additions to tax:                                                            
                                    Additions to Tax                                                    
                Year          Deficiency             Sec. 6653(a)(1)          Sec. 6661                 
                1988           $477,816                   $23,891             $119,454                  
            In so doing, respondent determined that Martin Ice Cream Co. (MIC                           
            or petitioner) recognized taxable gain of $1,430,340 on the                                 
            distribution of stock of its newly created subsidiary, Strassberg                           
            Ice Cream Distributors, Inc. (SIC), to one of petitioner’s two                              
            shareholders, Arnold Strassberg (Arnold), in redemption of his                              
            51-percent stock interest in petitioner.  Shortly before trial,                             
            we granted respondent's motion for leave to amend answer to                                 
            allege that a subsequent sale of assets to the H�agen-Dazs Co.,                             
            Inc. (H�agen-Dazs), by Arnold and SIC should be attributed to                               
            petitioner under Commissioner v. Court Holding Co., 324 U.S. 331                            
            (1945).                                                                                     
                  We reject respondent’s attempt to apply Court Holding,                                
            although we uphold respondent’s original determination that                                 
            petitioner recognized gain on the redemption of Arnold’s stock in                           
            petitioner.  We find that petitioner’s gain is substantially less                           
            than the gain determined by respondent.  We reject respondent’s                             
            imposition of an addition to tax under section 6653(a)(1) but                               





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