Winn-Dixie Stores, Inc. and Subsidiaries - Page 40




                                       - 40 -                                         

          F.3d 231, 247 (3d Cir. 1998), affg. in part and revg. in part               
          T.C. Memo. 1997-115; United States v. Wexler, 31 F.3d 117, 122              
          (3d Cir. 1994).  Denial of recognition means that such a                    
          transaction cannot be the basis for a deductible expense.  See              
          United States v. Wexler, supra at 122.  Citing the Supreme                  
          Court's decision in Gregory, the Court of Appeals for the                   
          Eleventh Circuit in Kirchman v. Commissioner, supra, stated the             
          doctrine as follows:                                                        
                    The sham transaction doctrine requires courts and                 
               the Commissioner to look beyond the form of a                          
               transaction and to determine whether its substance is                  
               of such a nature that expenses or losses incurred in                   
               connection with it are deductible under an applicable                  
               section of the Internal Revenue Code.  If a                            
               transaction's form complies with the Code's                            
               requirements for deductibility, but the transaction                    
               lacks the factual or economic substance that form                      
               represents, then expenses or losses incurred in                        
               connection with the transaction are not deductible.                    
               [Id. at 1490.]                                                         
          Because the transactional events at issue in this case actually             
          occurred, we limit our inquiry to the question of whether the               
          substance of the COLI transaction corresponds with its form.35              

               35In 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                 






Page:  Previous  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  Next

Last modified: May 25, 2011