Merrill Lynch & Co., Inc. & Subsidiaries - Page 47




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          held to be part of a firm and fixed plan; (2) in each case, the             
          complete termination of the shareholder’s interest required a               
          party not controlled by the taxpayer to acquire the remaining               
          shares; and (3) at the time of the redemption, the third-party              
          purchaser had already negotiated for and made a firm commitment             
          to acquire the remaining shares.  Petitioner extracts from the              
          cases the conclusions that, where an alleged plan to completely             
          terminate a shareholder’s ownership requires the participation of           
          a third party, the third party must have committed to the plan at           
          least in substance on or before the redemption date in order for            
          Niedermeyer’s “firm and fixed plan” requirement to be satisfied             
          and that a taxpayer’s unilateral plan can never be a firm and               
          fixed plan.  Petitioner’s analysis and arguments, therefore,                
          focus primarily on whether there was an agreement in substance              
          with the third-party purchasers of the target corporations’ stock           
          on the dates of the deemed section 304 redemptions; i.e., the               
          nine cross-chain sales.                                                     
               Respondent rejects petitioner’s attempt to focus the Court’s           
          eye primarily on the third-party purchasers who acquired the                
          target corporations’ stock and argues for the application of an             
          intent-based test drawn from the decision of the U.S. Court of              
          Appeals for the Sixth Circuit in Zenz v. Quinlivan, 213 F.2d 914            
          (6th Cir. 1954) and pertinent opinions of this Court, including             
          but not limited to, Niedermeyer v. Commissioner, supra.  Citing             






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