United Parcel Service of America - Page 75




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          whether the restructuring of petitioner's EVC activity in 1984 by           
          inserting NUF and OPL as part of the EVC transactions had                   
          substance.  If these transactions lack substance, then petitioner           
          engaged in an anticipatory assignment of income and cannot avoid            
          taxation "no matter how clever or subtle" the arrangement.                  
          United States v. Basye, 410 U.S. at 450.  While a taxpayer may              
          structure a transaction to minimize tax liability, that                     
          transaction must have economic substance if it is to be respected           
          for tax purposes.  See Kirchman v. Commissioner, 862 F.2d 1486              
          (11th Cir. 1989), affg. Glass v. Commissioner, 87 T.C. 1087                 
          (1986).                                                                     
               The inquiry into whether transactions have sufficient                  
          substance to be respected for tax purposes turns on both the                
          objective economic substance of the transactions and the                    
          subjective business motivation behind them.  See Kirchman v.                
          Commissioner, supra at 1491-1492;29 see also ACM Partnership v.             


               29In Kirchman v. Commissioner, 862 F.2d 1486, 1492 (11th               
          Cir. 1989), affg. Glass v. Commissioner, 87 T.C. 1087 (1986), the           
          court observed:                                                             
                    Courts have recognized two basic types of sham                    
               transactions.  Shams in fact are transactions that                     
               never occur.  In such shams, taxpayers claim deductions                
               for transactions that have been created on paper but                   
               which never took place.  Shams in substance are                        
               transactions that actually occurred but which lack the                 
               substance their form represents. * * *                                 
          Because all the transactions at issue in this case actually                 
                                                             (continued...)           




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