James S Sparkman - Page 19

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        transferred property differed materially before and after the                 
        trust’s creation; (2) whether the trust had an independent                    
        trustee; (3) whether an economic interest passed to other trust               
        beneficiaries; and (4) whether the taxpayer respected the                     
        restrictions placed on the trust’s operation as set forth in the              
        trust documents.  See, e.g., Muhich v. Commissioner, supra.  As               
        discussed below, each of these factors supports a conclusion that             
        Mercury Solar PTO had no economic substance.                                  
             A.  Sparkman's Relationship to the Mercury Solar Business                
             For about 10 years, Sparkman operated his Mercury Solar                  
        business as a sole proprietorship.  In 1993, he purported to                  
        transfer the business to HEH; about a year later, HEH purported to            
        transfer it to Mercury Solar PTO.  Insofar as the record reveals,             
        the business remained the same, apparently doing business under               
        the same name (Mercury Solar) as it always had, relying on                    
        Sparkman’s technical expertise.19                                             
             As far as the record reveals, Sparkman’s relationship to the             
        Mercury Solar business did not differ materially before and after             
        these purported transfers to HEH and Mercury Solar PTO.  As sole              


               19 In fact, Mercury Solar PTO does not even have its own               
          solar contractor’s license but instead uses Sparkman’s license.             
          As Sparkman testified in the trial of Richter v. Commissioner,              
          T.C. Memo. 2002-90:                                                         
               I’m the one with the technical expertise [at Mercury                   
               Solar PTO] and the license.  In fact, Mercury Solar                    
               uses my [solar contractor’s] license.                                  





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Last modified: May 25, 2011