Corbin West Ltd. Partnership, CDC Equity Corp., Tax Matters Partner - Page 7




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                                       OPINION                                        
          I.  Inclusion of the Note in the Property's Basis                           
               It is well established that the economic substance of a                
          transaction, rather than its form, controls for Federal tax                 
          purposes.  Gregory v. Helvering, 293 U.S. 465 (1935).  Respondent           
          argues that the note lacks economic substance; therefore, Corbin            
          West cannot include the note in the property's basis for purposes           
          of computing depreciation deductions or low-income housing                  
          credits.                                                                    
               Generally, the basis for computing depreciation and the low-           
          income housing credit is the cost of the underlying property.               
          See secs. 42, 167(c), 1011, 1012.  "Cost" is the amount paid for            
          the property in cash or other property.  Sec. 1.1012-1(a), Income           
          Tax Regs.  A promissory note is generally included in that cost.            
          Crane v. Commissioner, 331 U.S. 1 (1947); see Commissioner v.               
          Tufts, 461 U.S. 300 (1983); Estate of Franklin v. Commissioner,             
          544 F.2d 1045 (9th Cir. 1976), affg. 64 T.C. 752 (1975).  To be             
          included in the cost of the property, the promissory note must              
          reflect a genuine debt.  See Estate of Franklin v. Commissioner,            
          supra at 1049; Odend'hal v. Commissioner, 80 T.C. 588, 604-605              
          (1983), affd. on this issue and remanded 748 F.2d 908 (4th Cir.             
          1984).                                                                      
               Recourse notes are normally included in basis because the              
          taxpayer has a fixed, unconditional obligation to pay, with                 
          interest, a specified sum of money.  See Waddell v. Commissioner,           
          86 T.C. 848, 898 (1986), affd. per curiam 841 F.2d 264 (9th Cir.            

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