Estate of Helen Bolton Jameson, Deceased, Northern Trust Bank of Texas N.A., Independent Executor - Page 40

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          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.                                                         

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