- 35 -
of MSSTA arose as a result of the MSSTA transaction and the
amount of that liability would turn out to be different from that
determined under the closing agreement if we were to hold that
the form of that transaction controls the transferee liability
issues presented here.14 Cf. Pert v. Commissioner, 105 T.C. 370
(1995) (transferee bound by closing agreement made by transferor
with respect to latter's tax liability).
Not only do we find Vendig v. Commissioner, 229 F.2d 93 (2d
Cir. 1956), to be distinguishable from the instant case, it is
noteworthy that the Court of Appeals for the Second Circuit in
Abegg v. Commissioner, 429 F.2d 1209, 1215 (2d Cir. 1970), affg.
50 T.C. 145 (1968), did not rely on, or even cite, Vendig in de-
ciding that the substance of the transaction presented to it in
Abegg governed its resolution of the transferee liability issue
involved there.
We reject petitioner's contention that in the instant case
Vendig v. Commissioner, supra, requires that the form, and not
the substance, of the MSSTA transaction control our resolution of
the transferee liability issues presented.
14 Such a holding also would be inconsistent with the parties'
stipulations that $104,580 of the value of the 6,150 shares of
AST stock issued by AST to Mr. Scott and of the consulting fee
paid to him was an amount realized by MSSTA for MSSTA's assets
and that $95,072 of the value of the 6,150 shares of AST stock
issued by AST to Ms. Scott was an amount realized by MSSTA for
MSSTA's assets.
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