- 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. This
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