Charles A. McGee - Page 29




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            business in a corporate form and chose not to file an election                             
            for S corporation treatment under section 1362.  McGee                                     
            Landscaping was held out as a corporation, and petitioner                                  
            presented no evidence that McGee Landscaping was, in fact,                                 
            petitioner’s alter ego.                                                                    
                  While a taxpayer may challenge the form of a transaction if                          
            necessary to avoid unjust results, we can find no injustice in                             
            characterizing McGee Landscaping as a corporation and not as a                             
            sole proprietorship or passthrough entity.  See Spector v.                                 
            Commissioner, 641 F.2d 376 (5th Cir. 1981), revg. 71 T.C. 1017                             
            (1979).  Indeed, the Supreme Court has established a general rule                          
            that the separate existence of a corporation is to be respected                            
            for tax purposes.  See Moline Properties v. Commissioner, 319                              
            U.S. 436 (1943).                                                                           
                  Petitioner was free to run McGee Landscaping as he saw fit                           
            and chose to operate it as a separate corporate entity.                                    
            Petitioner simply cannot retrospectively disavow the form in                               
            which he chose to operate his landscaping business in order to                             
            obtain certain tax benefits.  Petitioner has failed to present                             
            any evidence indicating that McGee Landscaping did not possess a                           
            separate existence.  Accordingly, we decline to disregard the                              
            corporate form of McGee Landscaping.  Therefore, the gains and                             
            losses of McGee Landscaping are not reportable on petitioner’s                             
            individual income tax return.                                                              






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