- 64 - to satisfy one of the conditions of section 302(b) (such as, in the case of section 302(b)(3), the complete termination of the taxpayer’s ownership in the issuing corporation), and the steps of the plan were clearly integrated. Bleily & Collishaw, Inc. v. Commissioner, 72 T.C. at 756; Niedermeyer v. Commissioner, 62 T.C. at 291. Whether or not a plan existed is an issue of fact that must be resolved on the basis of all of the relevant facts and circumstances of a particular case. Bleily & Collishaw, Inc. v. Commissioner, supra at 756. The taxpayer has the burden of proving that the Commissioner’s position regarding the existence or nonexistence of a plan is erroneous. Rule 142(a).36 An analysis of whether or not a firm and fixed plan existed necessarily entails an examination of the taxpayer’s intent. See Monson v. Commissioner, supra at 835-836 (citing Zenz v. Quinlivan, supra, with approval); Niedermeyer v. Commissioner, supra at 291 (“there was no evidence of communication of petitioners’ asserted donative intention to the charity or to anyone”). It is the taxpayer’s intention, as manifested by the taxpayer’s participation in and agreement to the plan, that the search for a plan is designed to reveal. However, a taxpayer’s self-serving statement regarding its intent or regarding the 36Petitioner has not argued that the burden of proof should be placed on respondent, and we infer from the record that sec. 7491 does not apply because the examination in this case began before its effective date.Page: Previous 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 Next
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