Winn-Dixie Stores, Inc. and Subsidiaries - Page 42




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          borrower and lender is not dispositive of whether interest                  
          arising from that debt is deductible under section 163.  Rather,            
          the overall transaction, of which the debt is a part, must have             
          economic substance before interest can be deducted.  See Lee v.             
          Commissioner, supra at 587; United States v. Wexler, supra at               
          125.  If this were not the rule, every tax shelter, no matter how           
          transparently sham, could qualify for an interest expense                   
          deduction as long as there was a real creditor in the transaction           
          that demanded repayment.  Such a result would be "contrary to the           
          longstanding jurisprudence of sham shelters from Knetsch on                 
          down."  Lee v. Commissioner, supra at 587.                                  
               In determining whether a transaction or series of related              
          transactions constitute a substantive sham, both this Court and a           
          majority of the Courts of Appeals have utilized a flexible                  
          analysis that focuses on two related factors, economic substance            
          apart from tax consequences, and business purpose.  See ACM                 
          Partnership v. Commissioner, supra; Karr v. Commissioner, 924               
          F.2d 1018, 1023 (11th Cir. 1991); accord Casebeer v.                        
          Commissioner, 909 F.2d 1360 (9th Cir. 1990), affg. in part and              
          revg. in part on another ground Larsen v. Commissioner, 89 T.C.             
          1229 (1987); James v. Commissioner, 899 F.2d 905, 908-909 (10th             
          Cir. 1990), affg. 87 T.C. 905 (1986); Shriver v. Commissioner,              
          899 F.2d 724, 727 (8th Cir. 1990), affg. T.C. Memo. 1987-627;               







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