Saba Partnership, Brunswick Corporation, Tax Matters Partnership - Page 17




                                       - 106 -                                        
         sales or exchanges of property need not be respected where "the              
         challenged tax event is * * * a sham”, and that the Government               
         may look at the realities of a transaction and "disregard the                
         effect of the fiction as best serves the purposes of the tax                 
         statute."  Higgins v. Smith, 308 U.S. 473, 477 (1940).       In              
         Higgins v. Smith, supra, the Supreme Court held that a taxpayer              
         did not sustain a loss within the meaning of section 23(e) of the            
         Internal Revenue Code of 1939 when he sold securities below cost             
         to his wholly owned corporation.  Because the taxpayer retained              
         dominion and control over the stock transferred through his                  
         ownership of the corporate transferee, the Court found that "no              
         loss in the statutory sense could occur upon a sale by a taxpayer            
         to * * * [a wholly owned corporation]", notwithstanding the fact             
         that an actual transfer of the stock had occurred.  Id. at 476;              
         see also Frank Lyon Co. v. United States, 435 U.S. 561 at 573                
         ("In applying this doctrine of substance over form, the Court has            
         looked to the objective economic realities of a transaction                  
         rather than to the particular form the parties employed.");                  
         Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945) ("To             
         permit the true nature of a transaction to be disguised by mere              
         formalisms, which exist solely to alter tax liabilities, would               
         seriously impair the effective administration of the tax policies            
         of Congress.")                                                               








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