- 27 - F.2d 303 (3d Cir. 1987). In determining whether a taxpayer may attempt to disavow the form adopted for a transaction, this Court has considered at least four factors: (1) Whether the taxpayer seeks to disavow his or her own tax return treatment for the transaction; (2) whether the taxpayer’s tax reporting and other actions show an honest and consistent respect for the alleged substance of the transaction; (3) whether the taxpayer is unilaterally attempting to have the transaction treated differently after it has been challenged; and (4) whether the taxpayer will be unjustly enriched if permitted to alter the transactional form. See Taiyo Hawaii Co. v. Commissioner, 108 T.C. 590, 601-602 (1997); Estate of Durkin v. Commissioner, supra at 574-575; FNMA v. Commissioner, 90 T.C. 405, 426-427 (1988), affd. 896 F.2d 580 (D.C. Cir. 1990); Illinois Power Co. v. Commissioner, 87 T.C. 1417, 1430 (1986); Little v. Commissioner, T.C. Memo. 1993-281, affd. 106 F.3d 1445 (9th Cir. 1997); Norwest Corp. v. Commissioner, supra at 144-146. If a taxpayer is not precluded from arguing that substance, as opposed to form, should control tax consequences, he or she must then establish the claimed substance of the transaction under a heightened burden of proof. See Norwest Corp. v. Commissioner, supra at 140, 144; Estate of Durkin v. Commissioner, supra at 572-574; Illinois Power Co. v. Commissioner, supra at 1434; Little v. Commissioner, supra. ThisPage: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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