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2. MIC Is Not the Deemed Seller of Assets to H�agen-Dazs Under
Court Holding
Respondent argues that Arnold began and completed the
negotiations with H�agen-Dazs for the sale of distribution rights
on behalf of petitioner. Respondent would have us believe that
all essential terms fixed by the negotiations had been settled
before Mr. Hewit informed H�agen-Dazs that SIC and Arnold would
be the named sellers of the assets in the purchase agreement and
instructed H�agen-Dazs to omit all references to Martin and
petitioner from the purchase agreements. Respondent urges the
Court to apply the principle of Commissioner v. Court Holding,
Co., 324 U.S. 331 (1945),16 to find that petitioner is the true
seller of the assets, and that SIC is a mere conduit whose
16 Shortly after issuance of Rev. Rul. 96-30, 1996-1 C.B.
36, respondent first raised this theory with petitioner in a
stipulation conference held on June 19, 1996, and was given leave
to incorporate it in an amended answer filed less than 3 weeks
before trial. Generally, when the Commissioner makes allegations
in an amended answer requiring the presentation of different
evidence, then the Commissioner “has introduced a new matter” or
a new issue that requires the shifting of the burden of proof to
the Commissioner as to the new matter or issue. Achiro v.
Commissioner, 77 T.C. 881, 890 (1981); see also Seagate Tech.
Inc. & Consol. Subs. v. Commissioner, 102 T.C. 149, 169 (1994).
Because the determination of the applicability of
Commissioner v. Court Holding Co., 324 U.S. 331 (1945), required
respondent to present evidence of the events leading up to the
sale of assets which is different from the evidence showing that
the requirements of sec. 355 were not met, we issued an order
shifting the burden of proof to respondent on the Court Holding
issue. However, we decide the issue on a preponderance of the
evidence; therefore, the allocation of the burden of proof does
not determine the outcome. See Kean v. Commissioner, 91 T.C.
575, 601 n.40 (1988) (citing Deskins v. Commissioner, 87 T.C.
305, 323 n.17 (1986)).
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