- 312 - Commissioner, 108 T.C. 100, 102-103 (1997); F.W. Woolworth Co. v. Commissioner, 54 T.C. 1233, 1265-1266 (1970). The Commissioner proposed section 1.7872-2, Proposed Income Tax Regs., supra, in 1985, and has never adopted it in final form. The Commissioner has since asserted that section 7872 can apply to loans given in consideration for the sale or exchange of property, in both Frazee v. Commissioner, supra, and the case at hand. Moreover, our acceptance in Frazee of the Commissioner’s position that section 7872 applied to the intrafamily note necessarily rejected the position taken in the proposed regulation. For all these reasons, consistent with our decision in Frazee, we hold that the deferred payment arrangement may be a below-market loan subject to section 7872, even though no part of the sales price would be treated as interest or OID under sections 483 and 1274.90 90The Court of Appeals for the Seventh Circuit held, in Ballard v. Commissioner, 854 F.2d 185 (7th Cir. 1988), revg. T.C. Memo. 1987-128, that a note should have no gift tax consequences where it stated interest at the “safe harbor” rate referred to by sec. 483 and no portion of the note’s stated principal amount would be recharacterized as interest for that reason. In Krabbenhoft v. Commissioner, 94 T.C. 887 (1990), affd. 939 F.2d 529 (8th Cir. 1991), we reconsidered our position on the relevance of sec. 483 for gift tax purposes in light of the reversal of our Ballard decision, and decided not to follow that reversal except where required by the Golsen rule (see Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971)). Moreover, the Court of Appeals for the Tenth Circuit, to which an appeal of this case would lie, has agreed with our view, (continued...)Page: Previous 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 Next
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