Santa Monica Pictures, LLC, Perry Lerner, Tax Matters Partner - Page 29

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          business objectives, as well as the complexities of the                     
          transaction itself.                                                         
               B.  General Legal Principles                                           
               It is well established that the “incidence of taxation                 
          depends upon the substance of a transaction” rather than its mere           
          form.  Commissioner v. Court Holding Co., 324 U.S. 331, 334                 
          (1945).  In determining the substance of a transaction for                  
          Federal tax purposes, we are guided by the foundational                     
          principles that the U.S. Supreme Court stated in Gregory v.                 
          Helvering, 293 U.S. 465, 469 (1935):  “The legal right of a                 
          taxpayer to decrease the amount of what otherwise would be his              
          taxes, or altogether avoid them, by means which the law permits,            
          cannot be doubted.  * * *  But the question for determination is            
          whether what was done, apart from the tax motive, was the thing             
          which the statute intended.”  See also Knetsch v. United States,            
          364 U.S. 361, 365 (1960); Commissioner v. Court Holding Co.,                
          supra at 334.                                                               
               Under Gregory v. Helvering, supra, “it is immaterial whether           
          we are talking about ‘substantial economic reality,’ ‘substance             
          over form,’ ‘sham’ transactions, or the like; rather the question           
          is whether under the statute and regulations here involved the              
          transaction affects a beneficial interest other than the                    
          reduction of taxes.”  United States v. Ingredient Tech. Corp.,              
          698 F.2d 88, 94 (2d Cir. 1983).                                             






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