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taxpayers’ part to completely terminate their ownership interest
in AT&T.
(3) The taxpayers could easily have changed their minds
regarding their avowed intention to donate their preferred stock.
(4) The taxpayers failed to show that their alleged decision
to donate the preferred stock was in any way fixed or binding.
This Court emphasized that a plan sufficient to pass muster under
section 302(b)(3) did not need to be “in writing, absolutely
binding, or communicated to others” but that “the above-mentioned
factors, all of which are lacking here, tend to show a plan which
is fixed and firm.” Id. at 291-292.
Although the Court in Niedermeyer did not expressly state
that the plan to which it was referring was a plan of the
taxpayers, such a conclusion is warranted. The Court rejected
the taxpayers’ self-serving testimony regarding their intention
to donate and searched instead for objective evidence that the
deemed section 304 redemption and the later gift were integrated
parts of a firm and fixed plan on the part of the taxpayers to
completely terminate their ownership interest; i.e., a plan
consisting of clearly integrated steps to which the taxpayers
were firmly committed.
3. Benjamin v. Commissioner
In Benjamin v. Commissioner, 66 T.C. 1084 (1976), affd. 592
F.2d 1259 (5th Cir. 1979), the issue presented was whether the
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