- 259 - Helvering, supra. The question whether a corporation is genuine or a sham is one of fact. See Noonan v. Commissioner, 451 F.2d 992, 993 (9th Cir. 1971), Shaw Constr. Co. v. Commissioner, 323 F.2d 316, 321 (9th Cir. 1963). In Moline Properties, Inc. v. Commissioner, supra at 438- 439, the Supreme Court established the following test for determining whether a corporation will be recognized as a separate taxable entity: The doctrine of "corporate entity" fills a useful purpose in business life. Whether the purpose be to gain an advantage under the law of the state of incorporation or to avoid, or to comply with the demands of creditors or to serve the creator's personal or undisclosed convenience so long as that purpose is the equivalent of business activity or is followed by the carrying on of business by the corporation, the corporation remains a "separate taxable entity". * * * [Fn. refs. omitted.] Thus, if the corporations were organized for substantial business purposes, or actually engaged in substantial business activities, their corporate forms must be recognized for tax purposes. To be recognized, a corporation must be organized for a substantial "business" purpose in the ordinary meaning. See National Investors Corp. v. Hoey, 144 F.2d 466, 468 (2d Cir. 1944). "[E]scaping taxation is not 'business' in the ordinary meaning". Id. Thus, a corporation organized for the purpose of avoiding tax is not organized for substantial business purposes. It is clear from the evidence in these cases that the multiple corporations, as well as the trusts and partnerships,Page: Previous 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 Next
Last modified: May 25, 2011