- 40 - decedent's Johnco stock would be a large timber products company or pension fund. While it may still be possible after the repeal of the General Utilities doctrine to avoid recognition of built-in capital gains, respondent has failed to convince us that any viable options for avoidance would exist for a hypothetical buyer of decedent's Johnco stock. The tax strategies suggested by Mr. Burns, who is not an expert in taxation, can at best defer the recognition of built-in capital gains, but only by deferring income and ultimately cash-flow, and suggest the work of an advocate rather than a disinterested expert witness.24 Perhaps anticipating that the avoidance strategies offered by his expert do not withstand scrutiny, respondent argues on brief that petitioner could "hire some creative and resourceful tax practitioner" and since "someone might think of a way to avoid the tax effect of an immediate liquidation", the tax on built-in capital gains is only speculative. Contrary to respondent, we do not think Mr. Burns has demonstrated any real possibilities for avoidance of the built-in capital gains tax by Johnco, let alone 24 We note also that in suggesting the availability of an S corporation election as a means of avoiding the tax on built-in capital gains, respondent and his expert overlook clear obstacles to that approach. Electing S corporation status would require the consent of all shareholders; thus Andrew could thwart that approach. Also, the shareholders of an S corporation must generally be individuals, whereas experts of both parties conclude that the likely buyer of decedent's Johnco stock would be a large timber products company or a pension fund. Finally, respondent and his expert fail to consider the impact that sec. 1374 might have on any decision to convert Johnco from C to S corporation status.Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Next
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