Opinion

James E. Sochin v. Commissioner of Internal Revenue, Dennis S. Brown v. Commissioner of Internal Revenue

  • 843 F.2d 351
  • 25 Fed. R. Serv. 316
  • 61 A.F.T.R.2d (RIA) 926
  • 1988 U.S. App. LEXIS 3889
Court
Court of Appeals for the Ninth Circuit
Filed
Mar 29, 1988
Status
Published
Author
Beezer
On the bench
Choy, Goodwin, Beezer
Cited by
140 cases
Authority
More cited than 25.6%

Abrogated on other grounds by Ivan K. Landreth Lucille Landreth v. Commissioner Internal Revenue Service, 859 F.2d 643 (1988)

holding that a transaction was a sham because it had no “practical effects other than the creation of income tax losses”

How later courts described this case

  • holding that a transaction was a sham because it had no “practical effects other than the creation of income tax losses”
  • clarifying that disjunctive test that considers both subjective and objective factors, rather than “rigid two-step analysis,” is correct standard for economic substance doctrine
  • section 108 does not apply until the court determines that the transaction is not a sham
  • holding a taxpayer’s minimal investment for ordinary losses and long- term gain was a sham

Written by the judges who cited it.

Later courts went against this

  • Abrogated on other grounds by Ivan K. Landreth Lucille Landreth v. Commissioner Internal Revenue Service, 859 F.2d 643 (1988)

    843 F.2d 351, 355 n. 9 (9th Cir.1988), abrogated on other grounds by Landreth v. Comm’r, 859 F.2d 643, 648-49 (9th Cir.1988); see also
    Court of Appeals for the Ninth CircuitOct 4, 19882 citing opinionsother groundsRead it
  • Abrogated on other grounds by John E. Keane, Dorothy M. Keane v. Commissioner of Internal Revenue, 865 F.2d 1088 (1989)

    ” Prati v. United States, 81 Fed.Cl. at 438-39 (citations omitted); see also Sacks v. Comm’r, 69 F.3d 982, 987 (9th Cir.1995) (transaction in Sochin v. Commissioner was a sham because it had no “ ‘practical economic effects other than the creation of income tax losses’ ” (quoting Sochin v. Comm’r, 843 F.2d 351, 354 (9th Cir.1988) abrogated on other grounds by Keane v. Comm’r, 865 F.2d 1088, 1092 n. 8 (9th Cir.1989),…
    Court of Appeals for the Ninth CircuitJan 13, 1989other groundsmedium confidenceRead it

The opinion

BEEZER, Circuit Judge,

concurring:

I cannot reconcile Bail Bonds By Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543 (9th Cir.1987) with our prior precedent. There, we applied the two-prong disjunctive test adopted by the Fourth Circuit in Rice’s Toyota World, Inc. v. Commissioner, 752 F.2d 89 (4th Cir.1985). Unlike the genuine recourse indebtedness in Rice’s, however, the transaction in Bail Bonds existed only on paper.

I believe that a transaction which is in substance only “financial gymnastics,” purely artificial, or a “paper chase” does not require any inquiry into the profit motive. Enrici v. Commissioner, 813 F.2d 293 , 295 n. 1 (9th Cir.1987); Mahoney v. Commissioner, 808 F.2d 1219, 1220 (6th Cir.1987); see Goldberg v. United States, 789 F.2d 1341 (9th Cir.1986) (affirming sham determination focusing entirely on economic substance); Neely v. United States, 775 F.2d 1092 (9th Cir.1985) (invalidating putative tax consequences of sham trust on grounds that it had “no economic effect other than to create income tax losses”); Thompson v. Commissioner, 631 F.2d 642 (9th Cir.1980) (economic substance); Karme v. Commissioner, 673 F.2d 1062 (9th Cir.1982) (economic substance). 1

*357 I express no opinion whether the two prong disjunctive test adopted in Rice’s properly applies to genuine transactions; such is not the case here.

The Tax Court should be affirmed.

. I agree with the opinions's footnote 6 which states that section 108 of the Deficit Reduction Act of 1984 does not apply to transactions that are not bona fide. For that reason, this court’s opinion in Wehrly v. United States, 808 F.2d 1311 (9th Cir.1986), and the Tenth Circuit’s recent opinion in Miller v. Commissioner, 836 F.2d 1274 (10th Cir.1988), are inapposite.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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