- 94 - comment of Judge Wisdom: “The taxpayer too has a right to assert the priority of substance--at least in a case where his tax reporting and actions show an honest and consistent respect for the substance of a transaction.” Weinert v. Commissioner, 294 F.2d 750, 755 (5th Cir. 1961), affg. 31 T.C. 918 (1959).53 Our difficulty with respondent’s assertion of the “priority of substance” arises from the failure of respondent’s actions to show “an honest and consistent respect for the substance of [the] transaction.” Here, respondent, through his former attorneys, did not show respect for the substance of the transaction. McWade and Sims tried to hide the settlement from their supervisors, from the other parties, and from the Court. As we have seen, and the Court of Appeals has noted, Dixon v. Commissioner, 316 F.3d 1044 n.5, when Thompson was about to reveal his settlement in open court, McWade immediately steered him to another subject. Nor did respondent’s attorneys manifest a consistent respect for the substance of the transaction. In substance, the Thompsons’ settlement of their 1979-1981 deficiencies was a vehicle for payment of their attorney’s fees, but respondent, again through his former attorneys who perpetrated the fraud, characterized it as a refund of taxes to the Thompsons that was solely attributable to Bauspar. 53 See Smith, “Substance over Form: A Taxpayer’s Right to Assert the Priority of Substance”, 44 Tax Law. 137, 142 (1990).Page: Previous 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 Next
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