Antim G. and Jane V. Straus - Page 8




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          since the surrender of the policy is not deemed as a “sale or               
          exchange” as required for capital assets under section 1211.                
          Accordingly, we cannot accept petitioners’ reasoning that, as a             
          capital asset, the proceeds from the Northwestern Mutual                    
          distribution should be excluded from their gross income.                    
               Third, and finally, petitioners argue that had they known              
          that the Northwestern Mutual distribution would be included in              
          their 2003 gross income they would have certainly taken planning            
          steps to eliminate this result; namely, by making tax-free gifts            
          to Katherine.  Petitioners argue that the Court should treat the            
          distributions now as if they did, in fact, do this and                      
          accordingly, exclude the entire distribution from their gross               
          income, treat the entire distribution as transferred to their               
          daughter, and then allow either petitioners or their daughter to            
          pay tax on the distribution at Katherine’s applicable income tax            
          rate (approximately 10 percent).  Simply put, there is no                   
          authority under which we may provide such relief.  Taxpayers are            
          bound to the form in which they cast their transaction.                     
          Commissioner v. Natl. Alfalfa Dehydrating & Milling Co., 417 U.S.           
          134, 148-149 (1974).  Accordingly, we sustain respondent’s                  
          determination as to the amount in deficiency.                               
               As to the second issue, whether petitioners are liable for             
          the accuracy-related penalty arising from a substantial                     
          understatement of tax under section 6662, we start our discussion           







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