Norwest Corporation and Subsidiaries, Successor in Interest to United Banks of Colorado, Inc., and Subsidiaries, et al. - Page 61

                                       - 61 -                                         
          II.D.3.c. and d. (discussing Estate of Weinert v. Commissioner,             
          294 F.2d 750 (5th Cir. 1961), and Estate of Durkin v.                       
          Commissioner, supra, respectively).  Furthermore, when a taxpayer           
          seeks to disavow its own tax return treatment of a transaction by           
          asserting the priority of substance only after the Commissioner             
          raises questions with respect thereto, this Court need not                  
          entertain the taxpayer's assertion of the priority of substance.            
          See, e.g., Legg v. Commissioner, 57 T.C. 164, 169 (1971), affd.             
          per curiam 496 F.2d 1179 (9th Cir. 1974).                                   
               In Legg, the taxpayers sold an apple orchard for $140,000,             
          received a downpayment of $20,000 and an installment obligation,            
          and elected to report the transaction on the installment method.            
          Id. at 167-168.  Contemporaneously with that transaction, the               
          taxpayers executed an irrevocable trust, funded with the                    
          installment obligation.  Id. at 168.  The Commissioner asserted             
          that the transfer of the installment obligation to the trust was            
          a disposition giving rise to gain.  Id.  The taxpayers argued to            


          (...continued)                                                              
                    The Bureau of Internal Revenue, with the                          
               tremendous load it carries, must necessarily rely in                   
               the vast majority of cases on what the taxpayer asserts                
               to be fact.  The burden is on the taxpayer to see to it                
               that the form of business he has created for tax                       
               purposes, and has asserted in his returns to be valid,                 
               is in fact not a sham or unreal.  If in fact it is                     
               unreal, then it is not he but the Commissioner who                     
               should have the sole power to sustain or disregard the                 
               effect of the fiction since otherwise the opportunities                
               for manipulation of taxes are practically unchecked.                   
               * * *  [Maletis v. United States, 200 F.2d 97, 98 (9th                 
               Cir. 1952).]                                                           




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