- 27 - In sum, we conclude and hold that Mercury Solar PTO lacked economic substance and should be disregarded for Federal tax purposes and its income attributed to Sparkman.29 III. Unreported Income From HECO Rebates The parties stipulated that for 1999 HECO issued Mercury Solar PTO a Form 1099 showing nonemployee compensation of $195,275. At trial and on brief, petitioners seek to repudiate this stipulation, on the ground that respondent has not produced a copy of the Form 1099. Without disputing that HECO made payments of $195,275 as part of a rebate program, petitioners contend that only $81,921 of those payments was made to Mercury Solar PTO, which duly reported that amount on its 1999 Federal income tax return. Petitioners contend that the remaining amount of the HECO 29 For the first time on reply brief, petitioners argue that if Mercury Solar PTO is to be disregarded as a separate entity, then it “should be recognized as not separate from HEH and not Sparkman, as the Respondent contends.” We construe petitioners’ syntactically challenged argument to be that if Mercury Solar PTO is disregarded, its income should be attributed to HEH rather than to Sparkman. Because petitioners did not raise this argument or position in their pretrial memorandum, at trial, or on opening brief, respondent has had no opportunity to address petitioners’ position. We find petitioners’ attempt to raise this argument to be untimely. See Taiyo Haw. Co. v. Commissioner, 108 T.C. 590, 607 (1997). But even if we were to consider petitioners’ argument, it would be unavailing. On the basis of all the evidence in the record, we are unpersuaded that Sparkman’s transfer of the Mercury Solar business to HEH had any more economic reality than the subsequent retransfer to Mercury Solar PTO. Furthermore, on the basis of all the evidence, we have found that Sparkman, not HEH, held all the beneficial interests in Mercury Solar PTO during the years at issue.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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