Journal of Taxation 2004: Vol 100 Index

2004·1.5 MB·English

CUMULATIVE INDEX
302(b)(1)—there had been, in the Ser- properly attributable to its beneficia- ruled in favor of the IRS (TCM 2002-
vice’s view, no “meaningful reduction” ries still may be with us. 6), on remand it held in favor of the
of proportionate interest. Both the tax- taxpayer (TCM 2004-64), primarily
payers and the government agreed that because the Eighth Circuit had direct-
“control” is the key factor in determin- ed the Tax Court to give greater weight
SHIFTING THE BURDEN OF
ing whether there had been such a to the taxpayer’s testimony.
PROOF— WHETHER IT MATTERS
meaningful reduction of proportionate
DEPENDS ON WHICH PANEL IN Now a different panel of the Eighth
interest. Here, the transfers of stock (to
THE EIGHTH CIRCUIT HEARS THE Circuit has ruled on a similar Tax
the trusts for the children and on to
CASE Court case, in which the Tax Court
the voting trust) did not, even margin-
once again had held that the placement
ally, reduce the voting control pos- In the April issue, Philip N. Jones re-
of the burden of proof would make no
sessed by the parents. ported on the latest entry in the list of
The attribution rules applied here. cases being decided on the shift in the difference. This time, however, the
In fact, the ruling said, they always ap- burden of proof under the Section Eighth Circuit specifically agreed with
ply except where they are statutorily 7491 “credible evidence” rules adopted the Tax Court that the burden made no
barred—by Section 302(c)(2) or by by Congress in 1998. (See Jones, “The difference. In Polack, 93 AFTR2d 2004-
Sections 318(a)(5)(B) or (C). (The Burden of Proof: The Tax Court Re- 2094 (CA-8, 2004), aff’g TCM 2002-
Service reiterated its “hostility” to- sponds to the Eighth Circuit’s Direc- 145, the Eighth Circuit quoted a previ-
wards the decision in Robin Haft Trust, tive,” 100 JTAX 243 (April 2004).) Mr. ous Eighth Circuit opinion in a non-tax
510 F.2d 43, 35 AFTR2d 75-650 (CA-1, Jones, a partner in the Portland, Ore- case: “‘The shifting of an evidentiary
1975), which, of course, held that fam- gon, law firm of Duffy Kekel LLP, has burden of preponderance is of practi-
ily hostility is a relevant factor in de- sent us the following update. cal consequence only in the rare event
termining whether the family attribu- The Tax Court has held in more of an evidentiary tie....’ Cigaran v. Hes-
tion rules of Section 318(a)(1) apply.) than two dozen cases that the burden ton, 159 F.3d 355, 357 (CA-8, 1998)”
Thus, in Ltr. Rul. 200409001, the trusts of proof normally does not affect the So now we know the answer. Ac-
for the benefit of the children—the outcome in a case, because the party cording to the Eighth Circuit, Section
grantors of the votine trust—construc- supported by the preponderance of the 7491 has no meaning in one case, but
tively owned the stock held by the vot- evidence will prevail regardless of
it has meaning in a second case which,
ing trust, including the voting attribut- which party bears the burden of proof.
for our purposes, is virtually identical
es of the stock, and, thus, the control The court has often explained that the
to the first case. Any questions?
inherent in such stock was attributed placement of the burden of proof nor-
For those sticklers among you look-
(under Section 318(a)(2)(B)) to the mally will make a difference only when
ing for only one answer, the latest
trusts for the benefit of the children. the evidence is equally weighted. In
opinion in Polack appears to be cor-
Thus, this ruling seems to suggest Griffin, 315 F.3d 1017, 91 AFTR2d
rect. As noted above, the Tax Court has
that the IRS continues to view a 2003-486 (CA-8, 2003), the Eighth Cir-
grantor trust, at least for purposes of cuit reversed a holding by the Tax reached that conclusion more than two
Sections 302 and 318, as an entity from Court that the placement of the burden dozen times. And the Ninth Circuit has
which and to which attribution is ap- of proof would make no difference in agreed, although unfortunately that
propriate; the grantor is not treated as the outcome. In so doing, the Eighth opinion was unpublished, and thus
the actual or outright owner of the Circuit opined “... if that were the case, may not be cited as precedent: FRGC
corpus. Perhaps, then, the issue of § 7491(a) would have no meaning.A”l - Investment, LLC, 93 AFTR2d 2004-1434
whether stock possessed by the trust is though the Tax Court had originally (CA-9, 2004), aff’g TCM 2002-276.
CUMULATIVE INDEX
This index covers material in THE JOURNAL OF TAXATION, Volume 190, January -June 2004. Indexes are published twice
annually, in June and December
ACCOUNTING The new research credit final Regs.—what’s gone, COMPENSATION & BENEFITS
How tax shelters evolved: The road from Crane has been what’s new, and what's missing , by Steven D. Arkin and The advantages of health savings accounts—the Code’s
paved with bad contentions, by Alvin D. Lurie, 100 James M. Eberle, 100 JTAX 144, March04 newest healthcare arrangement, by Stanley D. Baum,
JTAX 274, May04 Temp. Regs. on the new markets tax credit are revised, 100 JTAX 101, Feb04
IRS issues new rules for depreciating replacement prop- 100 JTAX 195, April04 IRS attacks abusive transactions involving Roth IRAs,
erty in nonrecognition exchanges, by Louis S. Weller To capitalize or not? The INDOPCO era ends with final 100 JTAX 71, Feb04
and Dean A. Halfacre, 100 JTAX 262, May04 Regulations under Section 263(a), by Carol Conjura, No deferral on sale of stock to company ESOP—elec
IRS takes a unique approach in new rules for change in Timothy A. Zuber, and Peter C. Beale, 100 JTAX 215,
accounting method for depreciation, by W. Eugene Sea- April04 tion invalid, 100 JTAX 131, March04
go, 100 JTAX 350, Juned4 Treatment of environmental remediation costs, 100 Ruling explains how documented mileage costs satisfy
More options available under the nonaccrual experi- ITAX 131, March04 accountable plan rules, 100 JTAX 71, Feb04
ence method of accounting, by W. Eugene Seago, 100 When will change in depreciation or amortization be a Update on employee plans determination letter pro
JTAX 21, JanO4 change in accounting method?, 100 JTAX 67, Feb04 gram, 100 JTAX 259, May04
JOURNAL OF TAXATION @ JUNE
CUMULATIVE INDEX
CORPORATIONS, SHAREHOLDERS Hostile neighbors were “unforeseen circumstance” for Some nuances of partnership nonrecourse deductions,
The consolidated group diet—attribute reduction and purposes of Section 121, 100 JTAX 316, May04 by Terence Floyd Cuff, 100 JTAX 297, May04
other lifestyle changes, by Art Requenez, 100 JTAX 198, IKS approves 1031 exchange of water rights for farm-
April04 land, 100 JTAX 371, June04 SHOP TALK
Final Regs. govern reduction of tax attributes for dis- IRS implements promoter penalty by analogy to corpo- Dennis Rodman’s on-the-court antics and out-of-court
charge of debt, 100 JTAX 323, June04 rate tax shelter rules, 100 JTAX 247, April04 settlement lead to in-the-(Tax)-Court litigation, 100
New reporting requirements for changes in corporate IRS retroactively revokes earlier TAM on demutualiza- JTAX 62, Jan04
control and capital, 100 JTAX 67, Feb04 tion, 100 JTAX 373, June04 Dirty dozen, part III: Something old, something new,
Reorgs. will not be disqualified by asset and stock Loan-assistance payments by U.S. college to foreign na nothing legal here for you, 100 JTAX 319, May04
transfers to controlled corp., 100 JTAX 195, April04 tionals were foreign source income, 100 JTAX 190, Do “consistency-in-tax-reporting” clauses hurt taxpay-
March04 ers?, 100 JTAX 191, March04
ESTATES, TRUSTS, & GIFTS Merger of charitable organizations did not result in How long should partnership entities be kept alive?, 100
Assets transferred to FLPs not included in decedent's gain or loss, 100 JTAX 123, Feb04 JTAX 60, Jan04
estate where there was a bona fide sale, 100 JTAX 7, Partnership may allocate nonrecourse debt among its IRS audits IRS agents and finds the compliance level
Jan04 share of lower-tier partnership assets, 100 JTAX 56, “unacceptable”!, 100 JTAX 192, March04
NHeodHrwewuurl f e fsoatt rhrkuedecs errtd re iiaadsntnicgedsod tn rErniudpeblwlcueatastr indonfbn oisernK ,teg cws she1eaef0lro,n0ra cJt1gt0Terh0rAea XnJ tioTonf6rA ,c cXohJ mtaaer2rnu 0i0s6t4ta,a sn b,dAl epb reyisrlt Jea0tom4eha ni nta-Bx . PProJJnisoauvttnna- 0eta40ecs 4qu uabinjsneicuttii toynt o otbrSlaeincgstaaitcoitnoi no ns3e 8x2ic(nheva)o(nl2gv)ie,nd g ft1oa0rr0 g eptaJ rTstAunXbe grrso3h7ui6pp, IMsoe“ rltweehece at kioSeonesn rt,vt ihce1le 0i'0nrsk e ”tJ?rt,Toa AaxXc1pt0 a0iy2 ve5eJr6 T ,e AafAXfsp esrciti1s l2t80oa,f4n caFene be0ef4nft oirtty ncol aslsoinfgiecrat itohne
Private placement insurance arrangements: Recent de- interest was not a debt instrument, 100 JTAX 250, More on the tax consequences of destroying infamous
velopments dictate a fresh look, by Robert D. Colvin, April04 baseballs, 100 JTAX 251, April04
100 JTAX 34, Jan04 Recap. of controlled corp. followed by split-off was tax- More on unvested partnership profits interests, Section
Seventh Circuit upholds Hackl on annual exclusions— free reorg., 100 JTAX 190, March04 83(b), and Ltr. Rul. 200329001, 100 JTAX 253, April04
how far will the ripples spread?, by Peter B. Tiernan, Reorganization involving transfer of assets to wholly New letter ruling sheds some light on the Service's ap-
100 JTAX 93, Feb04 owned subsidiaries okayed as tax free, 100 JTAX 124, proach to grantor trusts and attribution, 100 JTAX
Trust-partner could deduct pass-through contribution Feb04 382, June04
despite trustee’s lack of authority, 100 JTAX 70, Feb04 Respite care payments are includable in the providers’ Shifting the burden of proof—whether it matters de-
EXEMPT incomes and are not excludable as foster care, 100 pends on which panel in the Eighth Circuit hears the
CA-5 remands St. David’s but provides little clarification JTAX 122, Feb04 case
on “control” in joint ventures, by DavidM . Flynn, 100 Rollover by surviving spouse of death benefit paid to Still more on the tax consequences of destroying infa-
JTAX 40, Jan04 estate was tax free, 100 JTAX 121, Feb04 mous basebalis, 100 JTAX 318, May04
D.C. Circuit overturns IRS’s anti-disclosure policy on S corporation may deduct expenses associated with Tax consequences of buying and destroying infamous
denials or revocations of exempt status, 100 JTAX 3, shareholders’ personal use of aircraft, 100 JTAX 56, baseballs, 100 JTAX 126, Feb04
Jan04 Jan04 Tax consequences of service partnerships’ investment
New guidance for exempts engaging in “ancillary” joint TEFRA proceeding for closed year not barred where programs, 100 JTAX 379, June04
ventures—how far does it go?, by David M. Flynn, 100 losses claimed in open year, 100 JTAX 368, June04
JTAX 363, June04 338 election could be made for acquisition of target SPECIAL INDUSTRIES
Political activities of tax-exempt oi ganizations—useful split between parent and sub, 100 JTAX 370, June04 The Service clarifies the facts and circumstances ap-
guidance in Rev. Rul. 2004-6, by Lloyd H. Mayer, 100 Treatment of self-charged rents received by a REIT, 100 proach to captive insurance companies,b y Bobbe Hirsh
JTAX 180, March04 JTAX 378, June04 and Alan S. Lederman, 100 JTAX 168, March04
Tuition reduction payments excluded from college em-
FRAUD & NEGLIGENCE ployees’ income, 100 JTAX 317, May04 STATE & LOCAL
IRS updates its list of tax-avoidance transactions, 100 California’s tax shelter law: A guide to disclosure and
JTAX 3, Jan04 PARTNERSHIPS, S CORPORATIONS, & LLCs penalties for corporate taxpayers, by Amy L. Silverstein
“Tax shelter” and “tax shelter opinion’ —IRS, in anoth- Built-in gains in assets-over partnership mergers, 100 and Prentiss Willson Jr., 100 JTAX 288, May04
er try at Circular 230, strikes out again, by Richard M. JTAX 259, May04
Lipton and Steven R. Dixon, 100 JTAX 134, March04 New partnership liability Regulations target abuse but AUTHOR INDEX
sweep more broadly, by Blake D. Rubin and Andrea Steven D. Arkin
INTERNATIONAL Macintosh Whiteway, 100 JTAX 86, Feb04 Sheldon I. Banoff
IRS simplifies procedures for information reporting on New Ruling explains revaluation of Section 197 intang’- Stanley D. Baum
foreign dividends, 100 JTAX 5, Jan04 bles by a partnership, 100 JTAX 323, June04 Peter C. Beale
Often overlooked and mostly unresolved issues in in- Prop. Regs. clarify Sub K treatment of installment Henry J. Birnkrant
ternational partnerships, by David L. Forst, 100 JTAX obligations and contributed contracts, 100 JTAX 5, Richard Carpenter
152, March04 Jan04 Robert D. Colvin
Transfer pricing for services is broadly affected by new Square peg, meet black hole: Uncertain tax conse Carol Conjura
Prop. Regs., mostly not for the better, by Henry J. quences of third generation LLEs, by Steven G. Frost Terence Floyd Cuff
Birnkrant, 100 JTAX 8, Jan04 and Sheldon I. Banoff, 100 JTAX 326, June04 Steven R. Dixon
LETTER RULINGS When is a partner not a partner? When does a partner- James M. Eberle
Attorney’s fees portion of settlement not included in ship exist?, by Richard M. Lipton and Steven R. Dixon, David M. Flynn
gross income of class-action members, 100 JTAX 59, 100 JTAX 73, Feb04 David L. Forst
Jan04 PERSONAL Steven G. Frost
Classification of debt secured by credit card receivables Decedent's estate held not entitled to innocent spouse Dean A. Halfacre
for purposes of the hedging rules, 100 JTAX 248, relief, 100 JTAX 72, Feb04 Bobbe Hirsh
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April4 van an attorney participate in the writing of an expert Alan S. Lederman
Duty of consistency doctrine required painting to be witness's report in the Tax Court?, byS tuart M. Hurwitz Richard M. Lipton
included in estate of second spouse to die, 100 JTAX and Richard Carpenter, 100 JTAX 358, June04 Alvin D. Lurie
375, June04 Final Regs. on qualified offers: Making it easier to make Lloyd H. Mayer
Earnings must be distributed to be excluded under al- IRS pay attorney’s fees, by Philip N. Jones, 100 JTAX Art Requenez
ternate valuation rules, 100 JTAX 55, Jan04 111, Feb04 Blake D. Rubin
Extended service contracts were insurance contracts, Tax Court discovery and the stipulation process: Bran- W. Eugene Seago
and issuer was insurance company, 100 JTAX 370, erion 30 years later, by Philip N. Jones, 100 JTAX 29, Amy L. Silverstein
June04 Jan04 Peter B. Tiernan
Foundation given five extra years to dispose of excess REAL ESTATE Louis S. Weller
business holdings, 100 JTAX 374, June04 Amounts received by REIT for providing parking facil- Andrea Macintosh Whiteway
Grants made to nurses will not be taxable expenditures, ities may qualify as rents from real property, 100 JTAX Prentiss Willson Jr.
100 JTAX 58, Jan04 195, April04 Timothy A. Zuber
JOURNAL OF TAXATION BJUNE 2004