Patrick G. & Valerie V. O'Malley - Page 28




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          Co. v. Commissioner, supra; Coleman v. Commissioner, supra.  The             
          United States Court of Appeals for the Fourth Circuit to which an            
          appeal in this case would normally lie requires application of               
          the strong proof rule where a taxpayer attempts to disregard the             
          form of a transaction as not reflective of its substance.  In an             
          unpublished opinion, Estate of Hoffman v. Commissioner, 8 Fed.               
          Appx. 262, 266 n.2 (4th Cir. 2001), that Court of Appeals ob-                
          served:  “Taxpayers who seek to elevate substance over form must             
          present ‘strong proof,’ a burden which is greater than a prepon-             
          derance of the evidence.”                                                    
               Applying the foregoing principles to the instant case,                  
          petitioners must show by strong proof that the benefits and                  
          burdens of ownership of lots 5 and 12 did not pass to Kevin                  
          O’Malley and Edward O’Malley, respectively, in order to sustain              
          their position that the December 2, 1999 transaction and the June            
          14, 2000 transaction do not constitute sales for tax purposes.               
          Evaluation of Certain Evidence on Which Petitioners Rely                     
               Petitioners rely on certain testimonial and documentary                 
          evidence in order to satisfy their burden of proof.  The testimo-            
          nial evidence on which petitioners rely is the testimony of Mr.              
          O’Malley and Edward O’Malley.  We found both Mr. O’Malley and                
          Edward O’Malley to be credible.  As discussed below, we also                 
          found certain of Mr. O’Malley’s testimony regarding the December             
          2, 1999 transaction to be general, vague, conclusory, and/or                 







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