Hubert and Flora M. Swaringer - Page 6




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               incentive of anticipated benefit” of an economic nature, it            
               is not a gift.  And, conversely, “[w]here the payment is in            
               return for services rendered, it is irrelevant that the                
               donor derives no economic benefit from it.”  A gift in the             
               statutory sense, on the other hand, proceeds from a                    
               “detached and disinterested generosity,” “out of affection,            
               respect, admiration, charity or like impulses.”  And in this           
               regard, the most critical consideration * * * is the                   
               transferor’s “intention.”  * * *                                       
                    * * * The donor’s characterization of his action is not           
               determinative–-that there must be an objective inquiry as to           
               whether what is called a gift amounts to it in reality.  It            
               scarcely needs adding that the parties’ expectations or                
               hopes as to the tax treatment of their conduct * * * [has]             
               nothing to do with the matter.                                         
                    * * * The proper criterion * * * is one that inquires             
               what the basic reason for * * * [the donor’s] conduct was in           
               fact--the dominant reason that explains his action in making           
               the transfer. * * * [Fn. refs. and citations omitted.]                 
               Petitioners have the burden of establishing that the amounts           
          in dispute constituted nontaxable gifts.  See Rule 142(a).  The             
          fundamental problem with petitioners’ case is that we have no               
          evidence as to the dominant reason for the transfers.  Instead,             
          all we have is petitioner’s characterization of the transfers as            
          gifts, which in itself has little or no evidentiary value.                  
               On the other hand, the evidence that we do have strongly               
          suggests that the transfers were not gifts within the meaning of            
          section 102(a).  The transfers arose out of petitioner’s                    
          relationship with the members of his congregation presumably                
          because they believed he was a good minister and they wanted to             
          reward him.  Furthermore, petitioner testified that without the             
          gifts his activity as a minister was essentially a money losing             






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