William J. Cutts - Page 28

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          of money that provides the transferor with a right to repayment             
          may be a loan.’”  KTA-Tator, Inc. v. Commissioner, 108 T.C. at              
          103 (quoting H. Conf. Rept. 98-861, supra at 1018, 1984-3 C.B.              
          (Vol. 2) at 272).                                                           
               KTA-Tator, Inc., is distinguishable from this case and does            
          not address whether overlapping loans should be netted.  KTA-               
          Tator, Inc., did not involve overlapping open accounts.  Rather,            
          it dealt with a timing issue; i.e., whether a series of advances            
          under a line of credit will be considered one loan or a series of           
          separate loans for purposes of section 7872.                                
               Because neither section 7872 nor the conference report                 
          provides authoritative guidance on this issue, and the proposed             
          regulations do not address this issue, we turn to other areas of            
          Federal tax law for authority on the subject of netting open                
          account balances between debtor and creditor.                               
               The incidence of taxation depends upon the substance of the            
          transaction.  Commissioner v. Court Holding Co., 324 U.S. 331,              
          334 (1945); United States v. Ingalls, 399 F.2d 143, 145-146 (5th            
          Cir. 1968), revg. 272 F. Supp. 10 (N.D. Ala. 1967).  Resort to              
          substance is not a right reserved for the Commissioner’s                    
          exclusive benefit--to use or not to use--depending on the amount            
          of the tax to be realized.  Estate of Weinert v. Commissioner,              
          294 F.2d 750, 755 (5th Cir. 1961), revg. 31 T.C. 918 (1959); see            
          also Estate of Durkin v. Commissioner, 99 T.C. 561, 572 (1992).             






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