Martin Ice Cream Company - Page 69

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            petitioner.  We note that sections 1.368-3(a), 1.355-5(a), and 1.351-                       
            3(a), Income Tax Regs., also require disclosure of all plans of                             
            reorganization, distributions of stock of a controlled subsidiary, and                      
            transfers to controlled corporations, respectively.  Because                                
            petitioner failed to disclose the transactions at issue on its 1988                         
            income tax return, the understatement may not be reduced on the ground                      
            of adequate disclosure.  Sec. 6661(b)(2)(B)(ii); sec. 1.6661-4, Income                      
            Tax Regs.                                                                                   
                  Substantial authority is defined in section 1.6661-3(a)(2),                           
            Income Tax Regs., as                                                                        
                  less stringent than a “more likely than not” standard (that                           
                  is, a greater than 50-percent likelihood of being upheld in                           
                  litigation), but stricter than a reasonable basis standard                            
                  (the standard which, in general, will prevent imposition of                           
                  the penalty under section 6653(a), relating to negligence or                          
                  intentional disregard of rules and regulations).  Thus, a                             
                  position with respect to the tax treatment of an item that                            
                  is arguable but fairly unlikely to prevail in court would                             
                  satisfy a reasonable basis standard, but not the substantial                          
                  authority standard.                                                                   
            With respect to the issue of whether Commissioner v. Court Holding                          
            Co., 324 U.S. 331 (1945), controls the transactions in question,                            
            petitioner has prevailed and thus had substantial authority for its                         
            position with respect to the form of the transactions.  Sec. 1.6661-                        
            3(a)(2), Income Tax Regs.                                                                   
                  Petitioner has not prevailed on the issue of whether section 355                      
            confers nonrecognition of gain realized in the split-off.  Petitioner                       
            must therefore demonstrate that substantial authority supports the                          
            positions taken on the income tax return with respect to those                              
            transactions.  Gallade v. Commissioner, 106 T.C. 355, 367 (1996); sec.                      




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