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None of these factors alone is determinative, and their
weight in each case depends on the surrounding facts and
circumstances. One difficulty in this case is that it is not
clear what rights an FRC shareholder was supposed to possess
because FRC did not observe any corporate formalities.
Furthermore, Mr. Marcus was a shareholder both before and after
Mr. Dunne transferred beneficial ownership of his stock.
Therefore, we will consider these factors in light of the rights
Mr. Dunne had as a shareholder of FRC before the settlement
agreement that he no longer had afterward, and where relevant,
what rights Mr. Marcus did or did not gain as a result of the
settlement agreement.
The fact that the settlement agreement gave Mr. Marcus the
right to obtain legal title to the stock upon the satisfaction of
certain conditions, which were likely to be satisfied at some
point, weighs in favor of petitioners. See Pacific Coast Music
Jobbers, Inc. v. Commissioner, supra at 874. While there was
certainly much dispute over some of the terms of the settlement
agreement, particularly the amount due to Mr. Dunne under the
halon contract, it is undisputed that the settlement agreement
contained Mr. Dunne’s binding agreement to sell his stock for an
amount that could be objectively determined and that Mr. Marcus
had the intention and ability to comply with the terms of the
sale once the disputes were settled. It appears that the signing
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