Jerry and Patricia A. Dixon, et al. - Page 131

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          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).             




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