Merrill Lynch & Co., Inc. & Subsidiaries - Page 55




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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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