Winn-Dixie Stores, Inc. and Subsidiaries - Page 65




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          sham transactions involved in this case.  A similar argument was            
          advanced in McLane v. Commissioner, 46 T.C. 140 (1966), affd. 377           
          F.2d 557 (9th Cir. 1967), where the taxpayers had engaged in a              
          series of transactions similar to those in the instant case.  In            
          the Revenue Act of 1964, Pub. L. 88-272, sec. 215(a), 78 Stat.              
          55, Congress added subsection (a)(3) of section 264 to address              
          problems associated with amounts paid or accrued on indebtedness            
          incurred with respect to several types of insurance contracts               
          pursuant to a plan of systematic borrowing.  In McLane v.                   
          Commissioner, supra at 144-145, we considered the same passage              
          from the Senate Finance Committee report that petitioner cites              
          and stated:                                                                 
                    Based upon the foregoing, petitioner by a tour de                 
               force concludes that: (a) The 1958 transaction herein                  
               is the type of abuse meant to be curbed by subsection                  
               (a)(3), but only prospectively; (b) the legislative                    
               history expressly confirms his assertion that the                      
               deduction flowing from this abuse was allowable under                  
               prior law; and (c) the 'interest' involved herein is                   
               therefore deductible.                                                  
                    We agree with petitioners that the 1958                           
               transaction in form fell within the class of                           
               transactions at which subsection (a)(3) was aimed.  But                
               we do not agree with his assertion that the legislative                
               history should be turned into an open-ended license                    
               applicable without regard to the substance of the                      
               transaction.  Nor do we agree with the assertion that,                 
               if Knetsch and Pierce, were controlling with respect to                
               post-1958 multiple-premium annuities, there would have                 
               been no need for further legislation in 1964.  Knetsch                 
               and Pierce involved transactions without substance.                    
               Congress, in enacting section 264(a)(3), struck at                     
               transactions with substance.  It is a reductio ad                      
               absurdum to reason, as petitioner does, that Congress                  
               simultaneously struck down a warm body and breathed                    




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