- 60 -
Respondent cites Estate of Durkin v. Commissioner, supra at
571-575, and argues that this Court looked to three factors to
determine whether a taxpayer could disavow the form of its
transaction:
(1) whether the taxpayer seeks to disavow its own
return treatment of the transaction, (2) whether
following the rationale of Weinert, the taxpayer’s tax
reporting and actions show and [sic] honest and
consistent respect for the transaction, (3) whether the
taxpayer is unilaterally attempting to have the
transaction treated differently after it has been
challenged. * * *
We disagree with respondent that the rationale of Estate of
Durkin can be so easily distilled. In any event, we need not
rely on Estate of Durkin because of the peculiar facts of this
case.
e. Petitioner May Not Disavow the Form of the
1988 Atrium Transaction
This Court has previously stated that a “taxpayer may have
less freedom than the Commissioner to ignore the transactional
form that he has adopted.” Bolger v. Commissioner, 59 T.C. 760,
767 n.4 (1973). That freedom is further curtailed if a taxpayer
attempts to abandon its tax return treatment of a transaction.
See, e.g., Halstead v. Commissioner, 296 F.2d 61, 62 (2d Cir.
1961), affg. per curiam T.C. Memo. 1960-106; Maletis v. United
States, 200 F.2d 97, 98 (9th Cir. 1952);13 see also supra secs.
13 In Maletis, the Court of Appeals for the Ninth Circuit
stated as follows:
(continued...)
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