Braunstein v. Commissioner

In Braunstein v. Commissioner, 374 U.S. 65, 83 S.Ct. 1663, 10 L.Ed.2d 757 (1963), the Supreme Court emphatically rejected the notion that section 117 (m) of the Internal Revenue Code of 1939 be held to have application only in those instances where judicial evaluation might prove the existence of tax avoidance considerations. It stated: There is no indication whatever of any congressional desire to have the Commissioner or the courts make a determination in each case as to whether the use of the corporation was for tax avoidance. Indeed, the drawing of certain arbitrary lines not here involved - such as making the section inapplicable to any shareholder owning 10% or less of the stock or to any gain realized more than three years after the completion of construction - tends to refute any such indication. It is our understanding, in other words, that Congress intended to define what it believed to be a tax avoidance device rather than to leave the presence or absence of tax avoidance elements for decision on a case-to-case basis. 374 U.S. at 71, 83 S.Ct. at 1666.