Estate of H.A. True, Jr. - Page 244




                                       - 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...)           





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