Winn-Dixie Stores, Inc. and Subsidiaries - Page 43




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          Rose v. Commissioner, 868 F.2d 851, 854 (6th Cir. 1989), affg. 88           
          T.C. 386 (1987); Kirchman v. Commissioner, supra; United Parcel             
          Serv. of Am., Inc. v. Commissioner, T.C. Memo. 1999-268.37                  
               Economic substance, in this context, is determined by                  
          objective evaluation of changes in economic position of the                 
          taxpayer (economic effects) aside from tax benefits.  See                   
          Kirchman v. Commissioner, supra at 1492; accord Knetsch v. United           
          States, supra at 366 ("nothing of substance to be realized * * *            
          from this transaction beyond a tax deduction"); ACM Partnership             
          v. Commissioner, supra at 248; Sheldon v. Commissioner, supra.              
          The inquiry into whether there was a legitimate business purpose            
          involves a subjective analysis of the taxpayer's intent.  See ACM           
          Partnership v. Commissioner, supra at 247; Kirchman v.                      
          Commissioner, supra at 1492.                                                
               We will begin with an examination of the economic substance            
          of petitioner's 1993 COLI plan.  In doing so, we focus on the               
          COLI transaction in its entirety rather than any single step.               
          See Kirchman v. Commissioner, supra at 1493-1494.                           
               Petitioner's 1993 purchase of COLI on the lives of                     
          approximately 36,000 of its employees was done pursuant to an               


               37In certain situations courts have held that a transaction            
          that lacks economic substance, other than the production of a tax           
          benefit, is a substantive sham regardless of the motive of the              
          taxpayer.  See Knetsch v. United States, supra at 365; Dewees v.            
          Commissioner, 870 F.2d 21, 35 (1st Cir. 1989); Kirchman v.                  
          Commissioner, supra at 1492.                                                




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