Patty K. Copeland, a.k.a. Patty K. White - Page 11




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               In the Court of Appeals for the Ninth Circuit’s opinion in             
          Hill v. Commissioner, supra at 1220, the following explanation is           
          dispositive of petitioners’ arguments:                                      

                    “We specifically reject Krause’s assertion                        
                    that the Tax Court erred in finding Barton                        
                    Income Fund liable for an increased rate of                       
                    interest because a transaction which is                           
                    determined to lack a profit motive does not                       
                    equal a tax-motivated transaction under                           
                    section 6621.  Section 6621(c)(1) imposes an                      
                    increased rate of interest on ‘any                                
                    substantial underpayment attributable to tax                      
                    motivated transactions,’ which include                            
                    activities not engaged in for profit.” * * *                      
                    [Quoting in part Hildebrand v. Commissioner,                      
                    28 F.3d at 1028.]                                                 
               The reasoning in Hildebrand is sound:  the Secretary                   
               has authority to define certain transactions as tax                    
               motivated, the Secretary has defined transactions                      
               lacking a profit motive under section 183 as tax                       
               motivated, the transactions in this case lack a profit                 
               motive under section 183, petitioners’ activities                      
               relating to these transactions are therefore tax                       
               motivated.                                                             
                    A close examination of section 6621(c)                            
               demonstrates that the Secretary is well within the                     
               granted regulatory power to simply equate the violation                
               of one code section with a violation of section                        
               6621(c).                                                               
               *       *       *       *       *       *       *                      
                    These, and the remaining “tax motivated                           
               transactions” set out in section 6621(c)(3)(A) show a                  
               legislative pattern established by Congress which                      
               treats violations of certain code sections as implicit                 
               violations of section 6621(c).  The Secretary simply                   
               followed this pattern pursuant to the regulatory                       
               authority granted in section 6621(c)(3)(B) by                          
               establishing regulations that make a violation of                      
               section 183 a tax motivated transaction.                               






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Last modified: May 25, 2011