Richard J. and Carol C. Spera - Page 9

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          petitioners.  Respondent argues that the purported lease                    
          agreement between petitioners and GRC was not negotiated at arm's           
          length, that the lease should be disregarded, and that the money            
          GRC expended on the Ashland Building should be treated as                   
          constructive dividends to petitioners.  Petitioners argue that              
          section 109 specifically removes the expenditures at issue from             
          the definition of gross income, and that GRC's expenditures are             
          thereby not income to petitioners.  Petitioners bear the burden             
          of proving respondent's determination wrong.  Rule 142(a);                  
          Welch v. Helvering, 290 U.S. 111, 115 (1933).                               
          I.  Economic Reality and The Lease Agreement                                
               As a general rule, improvements made by a lessee to a                  
          leasehold estate do not result in the realization of income by              
          the lessor in the year of the improvement or upon termination of            
          the lease.  Sec. 109; M.E. Blatt Co. v. United States, 305 U.S.             
          267 (1938); Bardes v. Commissioner, 37 T.C. 1134 (1962); Weigel             
          v. Commissioner, T.C. Memo. 1996-485.  However, this rule and the           
          case law developed thereon do not apply where the lease agreement           
          is determined to be a subterfuge or a sham.  Commissioner v.                
          Court Holding Co., 324 U.S. 331 (1945); Jaeger Motor Car Co. v.             
          Commissioner, T.C. Memo. 1958-223, affd. 284 F.2d 127 (7th Cir.             
          1960).  Therefore, as an initial matter, we must ascertain                  
          whether the lease arrangement between GRC and petitioners has any           
          economic reality and should be respected for tax purposes.                  





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