- 27 - 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).Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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