Transport Manufacturing & Equipment Company of Delaware, Appellant, v. Commissioner of Internal Revenue, Appellee, 431 F.2d 729 (8th Cir. 1970)

This is the second appeal involving the issue whether the petitioner suffered a deductible loss in 1956 upon the sale of certain trailers to Riss & Co., a corporation having substantially the same stockholders as the taxpayer. This court earlier remanded the issue to the Tax Court for a factual determination as to whether the taxpayer's adjusted losses arising from the sale are deductible. Transport Mfg. & Equip. Co. of Delaware v. Commissioner of Internal Revenue, 374 F.2d 173 (8 Cir. 1967). Upon remand the Tax Court of the United States, in an opinion written by Judge Forrester, T.C. Memo 1968-190, found that the sale of the trailers was not bona fide. The Tax Court held "that the difference between TM&E's basis in the trailers and the $34,500 received from Riss & Company represents a capital contribution to Riss & Company by the shareholders of TM&E."

On appeal the taxpayer urges that the findings of the Tax Court are not based upon the evidence and are clearly erroneous. It is likewise urged that the Tax Court applied the wrong legal standard in making its determination. We think that taxpayer misconstrues the Tax Court's application of the standards involved. On the basis of the findings made by the Tax Court as a trier of fact, we cannot say they are clearly erroneous. Upon review, we are satisfied there exists sufficient evidence and inference therefrom to support the Tax Court's finding that the trailers were not sold to Riss & Co. at fair market price. We think the Tax Court properly concluded that this sales price would not have been offered to unrelated third parties.¹  This, as the Tax Court so reasoned, was persuasive indicia of bad faith and of a sale not bona fide.

On the basis of the evidence presented and the findings made by Judge Forrester, the judgment is affirmed.