- 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).]Page: Previous 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 Next
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