Merrill Lynch & Co., Inc. & Subsidiaries - Page 64




                                       - 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

Last modified: May 25, 2011