¶1dissenting: For present purposes, I assume that the Commissioner’s regulation is a permissible interpretation of the statute. This deficiency must then have included an implicit determination by respondent that the requisite “view” existed prior to the completion of construction. The burden of proving the contrary rests upon petitioner. Rose Sidney, 30 T.C. 1155 (1958), aff'd. 273 F. 2d 928 (C.A. 2, 1960). This view need not be the “principal” one. Max Mintz, 32 T.C. 723 (1959), aff'd. 284 F. 2d 554 (C.A. 2, 1960). I find nothing in the record, including the Court’s Findings of Fact, which even remotely sustains the burden of proving that there was no such view, either “unconditionally” or at least “conditionally, or as a recognized possibility.” Sec. 29.117-11(5), Regs. 111, 1953-1 C.B. 187, 190. Certainly, the concededly unreliable testimony of petitioner, with no impartial evidence to support it, cannot justify the ultimate finding, which is really a legal conclusion, that the corporation was not “availed of” with a “view to … [the realization of gain through a] sale or … distribution … prior to the realization … of a substantial part of the net income to be derived from such property.” This is the only test which the statute invokes. I, accordingly, respectfully dissent.
35 T.C. 848
Riley v. Commissioner
Decided February 28, 1961
United States Tax Court · decided 1961-02-28
1. Held, that petitioner realized a net profit of $ 25,761.08 as the building contractor for the construction of the Manning Gardens apartments. 2. Held: that petitioner realized a net profit of $ 25,761.08 as the building contractor for the construction of the Manning Gardens apartments. 2.
Key passage — most relied on by later courts
“(1) Treatment of gain to shareholders. — Gain from the sale or exchange (whether in liquidation or otherwise) of stock of a collapsible corporation, to the extent that it would be considered (but for the provisions of this subsection) as gain from the sale or exchange of a capital asset held for more than 6 months, shall, except as provided in paragraph (3), be considered as gain from the sale or exchange of property which is not a capital asset. "(2) Definitions. — "(A) For the purposes of this subsection, the term `collapsible corporation' means a corporation formed or availed of principally for the manufacture, construction, or production of property, or for the holding of stock in a corporation so formed or availed of, with a view to — "(i) the sale or exchange of stock by its shareholders (whether in liquidation or otherwise), or a distribution to its shareholders, prior to the realization by the corporation manufacturing, constructing, or producing the property of a substantial part of the net income to be derived from such property, and "(ii) the realization by such shareholders of gain attributable to such property. * * *”
quoted by 1 later decision, including Commissioner v. Solow
Relies on Sidney v. Commissioner · Mintz v. Commissioner · Sidney v. Commissioner
Good law ✅— No negative treatment on recordhow we know
Decision will be entered under Rule 50 · Decided 1961-02-28
How this case has been cited
Cited by 18 later decisions — most recently September 1987
3 federal appellate ·
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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