- 7 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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