                         T.C. Memo. 1997-274



                       UNITED STATES TAX COURT



         CLARK D. AND JANIS L. PULLIAM, Petitioners v.,
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12923-95.                        Filed June 17, 1997.




     Robert J. Schuckit and Richard O. Kissel II, for

petitioners.

     Russell D. Pinkerton for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION
                               - 2 -

     DAWSON, Judge:1   Respondent determined a deficiency of

$245,732 in petitioners' Federal income tax for 1992, and an

accuracy-related penalty of $49,146 under section 6662(a)2 and

6662(b)(2) for a substantial understatement of income tax.

     The principal issue for decision is whether the distribution

by Pulliam Funeral Homes, P.C. (Homes) to petitioner Clark D.

Pulliam of 1,000 shares of common stock in Pulliam Deckard

Funeral Chapel, P.C. (Chapel) on January 1, 1992, constituted a

distribution on which no gain or loss is recognized under the

provisions of section 355.   The resolution of this issue depends

upon whether the spin-off of Chapel from Homes was used

principally as a device for the distribution of earnings and

profits of Homes in contravention of section 355(a)(1)(B).     If

the spin-off of Chapel from Homes was not used principally as a

device for the distribution of earnings and profits, a new and

alternative issue, not determined in the notice of deficiency and

not pleaded in respondent's answer but first raised by respondent

at trial and on brief, is whether Homes distributed enough stock




     1
          With the consent of counsel for the parties, the Chief
Judge reassigned this case, after the death of Judge Irene F.
Scott, to Judge Howard A. Dawson, Jr., for disposition on the
existing record.
     2
           All section references are to the Internal Revenue Code
in effect for the year in issue, and all Rule references are to
the Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                              - 3 -

in Chapel to constitute control within the meaning of section

368(c), as required by section 355(a)(1)(D).

     The notice of deficiency sent to petitioners determined

that, in the event it is decided that Mr. Pulliam did not receive

dividends of $789,500 from Homes, Mr. Pulliam received $40,000 in

1992 as a downpayment on an installment sale of 49 percent of his

stock in Chapel, which petitioners did not report on their

Federal income tax return for that year.3   This alternative

determination was not placed in issue by petitioners.   Likewise,

petitioners did not allege errors in their petition with respect

to the disallowance of a personal exemption deduction, an

adjustment to itemized/standard deductions, and the assertion of

an accuracy-related penalty under section 6662(a).

                        FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and supplemental stipulation, together

with attached exhibits, are incorporated herein by this

reference.

     Clark D. Pulliam and Janis L. Pulliam (petitioners) resided

in Robinson, Illinois, at the time they filed their petition in

this case.



     3
          According to Mr. Pulliam's testimony, the $40,000 was
omitted from petitioners' Federal income tax return, but it was
later reported and an advance payment was made on the deficiency
determined for 1992.
                                - 4 -

     Pulliam Funeral Homes, P.C. (Homes) is a corporation

chartered in the State of Illinois and doing business in Crawford

County, Illinois.    The business was founded in 1947 by Troy L.

Pulliam, Jr.   It was incorporated as a professional service

corporation in 1974.    Troy L. Pulliam, Jr., was the sole owner of

Homes' stock from 1974 until his death in 1976.    His son, Clark

D. Pulliam (Mr. Pulliam), purchased all the stock of Homes in

1976, and since that time he has been the sole shareholder,

director, and president of Homes.    Mr. Pulliam is a licensed

funeral director and embalmer in the State of Illinois.      He has

served as coroner of Crawford County, Illinois.    He is a

decorated Air Force veteran who served in Vietnam.

     Prior to January 1, 1992, Homes operated three funeral homes

located in the rural eastern Illinois towns of Robinson, Oblong,

and Hudsonville.    Robinson has a population of about 7,200 and

Oblong has a population of about 1,600.    Oblong is located

approximately 8 miles west of Robinson.    The main offices of

Homes are located in Robinson, where Mr. Pulliam has his personal

office and manages all the Homes sites.    All three of the funeral

homes are modern, well-maintained facilities.

     Homes is a successful and profitable business.    In 1991 Mr.

Pulliam was paid a salary of $181,400.    Prior to 1992, Homes had

not paid any dividends, and it had unappropriated retained

earnings of $1,112,445 on December 31, 1991.
                                 - 5 -

       On December 31, 1991, Mr. Pulliam owed Homes $219,337.   The

loans made to him had no stated interest rate and were payable on

demand.    They were used primarily to finance petitioners' new

residence.    They began building their new residence after

completing the building and remodeling of Homes' funeral

facilities.

       The Oblong funeral home of Homes was originally built as a

residence in 1920 and was converted to a funeral parlor in 1939.

The last major renovation of the Oblong facility occurred in

1986.

       The Oblong funeral home was given excellent appearance and

maintenance ratings in the appraisal made by Vandelyn R. Pine,

dated January 9, 1992.

       The total number of funeral services conducted during the

years 1986 through 1991 at the Oblong facility was as follows:

1986        1987      1988       1989     1990      1991

 53          75        54         51       44        56

The number of funeral services conducted at the Oblong facility

averaged between 60 and 70 funerals per year during the years

1992 and 1993.

       Earl L. Deckard (Mr. Deckard), a licensed funeral director

and embalmer in Illinois, was employed by Homes or Chapel from

November 1980, until mid-1994.    He worked at the Robinson

facility through 1985, and then worked at the Oblong facility for

the remainder of his employment.
                               - 6 -

     From 1985 through 1989, Mr. Deckard lived in the upper level

of the Oblong facility.   He then moved into his own home.

Beginning in 1985, he was the resident manager and embalmer at

Oblong where he was in charge of day-to-day operations of the

funeral home.   He was the only full-time employee at the Oblong

facility, although it had a part-time secretary and a part-time

receptionist.   Mr. Deckard also assisted at Homes' other

facilities on an as needed basis.

     Mr. Deckard was a key employee of Homes.   He was well

connected in both the Oblong and Robinson communities.   He was

raised in Oblong, graduated from high school there, and was a

member of the community club, village board, and the police and

fire commission.   He was also a member of a large church.

     Prior to 1991, Mr. Deckard had spoken to Mr. Pulliam about

acquiring a financial interest in the Oblong facility.   But Mr.

Pulliam was not then interested in selling any of his ownership

in Homes or Oblong until his son, David, had an opportunity to

choose his vocation.   Mr. Deckard was not interested in any

minority ownership in Homes.   He later so indicated in writing

that he "had absolutely no interest in a minority interest in

Pulliam Funeral Home, P.C.".   Also prior to 1991, Mr. Pulliam and

Mr. Deckard had some disagreements regarding the operation of the

Oblong facility.   Consequently, in early 1991, Mr. Deckard

purchased property adjacent to his residence on which he intended

to construct and operate his own funeral home in Oblong.
                                - 7 -

     Mr. Pulliam discovered that Mr. Deckard had purchased the

property in Oblong and that he planned to construct and operate a

funeral home in competition with Homes.    This would have caused

Homes to lose a key employee.   Homes would also have lost

business in the small market area of Oblong and vicinity, and it

would have had an adverse impact on its profits.

     Upon learning of Mr. Deckard's intent, Mr. Pulliam summarily

terminated his employment in July 1991.    He then requested his

attorney, Max Tedford (Mr. Tedford), to prepare a formal

termination letter to Mr. Deckard.

     After Mr. Deckard's employment was terminated, Mr. Pulliam

experienced some problems in the Oblong facility.    He and Mr.

Tedford discussed what could be done to rectify the situation.

Mr. Tedford advised him and suggested that a negotiation meeting

with Mr. Deckard be arranged.

     A meeting was held in July 1991 in Mr. Tedford's office,

attended by Mr. Pulliam, Mr. Deckard, and their wives.    An

informal agreement was reached whereby Mr. Deckard would acquire

an ownership interest in the Oblong facility and would be

reemployed at a salary and bonus.    The corporate minutes of

Homes, dated July 2, 1991, stated as follows:

          The sole stockholder and director of Pulliam Funeral
          Homes, PC., conducted a special meeting of said
          Corporation at the Corporate offices at 1005 West Main
          St., Robinson, Illinois, for the purpose of considering
          an offer from long-time employee Earl L. Deckard to
          purchase an interest in the business of Oblong,
          Illinois. After consideration, it was decided that Mr.
                              - 8 -

          Deckard could purchase up to 49% of the Oblong
          location, after a spin-off from Pulliam Funeral Homes,
          P.C., into Pulliam-Deckard Funeral Chapel, P.C., in
          which Clark D. Pulliam would be the sole stockholder,
          and from which up to 49% of the stock could be sold to
          Earl L. Deckard.

          It was decided to use Vanderlyn R. Pine and Associates
          to do the appraisal and all fees and costs associated
          with the spin-off and sale would be borne by the buyer
          and seller on a 51-49 split.

          It was further agreed that January 1, 1992 would be the
          preferred target date to coincide with Calendar year-
          end and that progress towards that sale would be easily
          accomplished.

          A sale price to be established by appraisal will be
          agreed to in writing by the parties and all accounting
          and legal matters resolved prior to sale.

     After the July meeting, Mr. Pulliam provided his

accountants, Kemper CPA Group, and his lawyer, Mr. Tedford, with

information and data, and requested that they plan the

transactions and prepare the necessary written agreements.

     Mr. Pulliam, his attorney, and his accountants agreed on the

spin-off and other transactions before the formation of Chapel

and the distribution of all its stock to Mr. Pulliam.    He

selected and contacted the appraiser, Vanderlyn R. Pine.      He was

billed for the $5,950.76 appraisal fee.    He contacted and hired

the attorney, Mr. Tedford, and the accountants, Kemper CPA Group.

Mr. Tedford had three conferences with Mr. Pulliam between

December 2, 1991, and February 28, 1992.   Mr. Tedford had no

contacts with Mr. Deckard during that period.   All of the

agreements were prepared by Mr. Tedford.   All of the agreements
                               - 9 -

were structured by Mr. Tedford and the accountants.   Mr. Deckard

was unrepresented in the transactions.

     A Spin-off Agreement executed by Mr. Pulliam and Mr..

Deckard on January 1, 1992, provided, in pertinent part, as

follows:

                WHEREAS, PULLIAM FUNERAL HOMES, P.C. is currently
           engaged in the funeral business in Crawford County,
           Illinois, and
                WHEREAS, CLARK D. PULLIAM is the sole shareholder
           of PULLIAM FUNERAL HOMES, P.C. and
                WHEREAS, PULLIAM FUNERAL HOMES, P.C. proposes to
           transfer to PULLIAM DECKARD FUNERAL CHAPEL, P.C. the
           real estate and improvements, and other assets set
           forth on Exhibit A attached, heretofore used by it in
           that portion of its business operation situated in
           Oblong, Illinois, in return for all the issued and
           outstanding shares of PULLIAM DECKARD FUNERAL CHAPEL,
           P.C. and to simultaneously transfer to CLARK D.
           PULLIAM, the sole shareholder of PULLIAM FUNERAL HOME,
           P.C. all of said outstanding and issued shares of
           PULLIAM DECKARD FUNERAL CHAPEL, P.C. and
                WHEREAS, PULLIAM FUNERAL HOME, P.C. and PULLIAM
           DECKARD FUNERAL CHAPEL, P.C. are desirous of entering
           into an agreement for the purpose of securing the
           transfer to PULLIAM DECKARD FUNERAL CHAPEL, P.C. of the
           above-described assets of PULLIAM FUNERAL HOMES, P.C.
           and the ultimate transfer to the sole shareholder of
           PULLIAM FUNERAL HOMES, P.C. * * * of the issued and
           outstanding shares of PULLIAM DECKARD FUNERAL CHAPEL,
           P.C.
                NOW, THEREFORE, in consideration of mutual
           covenants and undertakings of the respective parties
           hereto, it is agreed as follows:
                1. PULLIAM FUNERAL HOMES, P.C. does hereby agree
           to transfer into PULLIAM DECKARD FUNERAL CHAPEL, P.C.,
           effective January 1, 1992, all of those assets more
           particularly identified on Exhibit A which is attached
           hereto and incorporated herein by this reference.
                2. Simultaneous with the transfer of the assets
           as provided for in paragraph 1 above, PULLIAM DECKARD
           FUNERAL CHAPEL, P.C. agrees to transfer to PULLIAM
           FUNERAL HOMES, P.C. all of the issued and outstanding
           shares of stock of PULLIAM DECKARD FUNERAL CHAPEL,
                              - 10 -

          P.C., which in turn will transfer said shares to its
          sole shareholder, CLARK D. PULLIAM.
               3.   It is the intention of all parties hereto
          that no gain or loss for income tax purposes will be
          recognized in that said transaction shall constitute a
          "spin-off" pursuant to Section 355 of the Internal
          Revenue Code and accordingly it is agreed that the
          value of the assets transferred shall be their tax
          basis value as determined by Kemper CPA Group.

     An Agreement dated February 28, 1992, to be effective

January 1, 1992, was signed by Mr. Pulliam and Mr. Deckard.   The

Agreement incorporated a Stock Purchase Agreement and an

Employment Agreement.   The Agreement also provided, in pertinent

part, as follows:

               WHEREAS, PULLIAM owns 100 percent (1000 shares) of
          the common stock of PULLIAM DECKARD FUNERAL CHAPEL,
          P.C., an Illinois Corporation; and
               WHEREAS, DECKARD desires to purchase from PULLIAM,
          and PULLIAM desires to sell to DECKARD 49 percent (490
          shares) of the common stock of PULLIAM DECKARD FUNERAL
          CHAPEL, P.C., an Illinois Corporation.
               NOW, THEREFORE, in consideration of the mutual
          covenants and undertakings of the respective parties
          hereto, it is agreed as follows:
               1. DECKARD agrees to purchase from PULLIAM, and
          PULLIAM agrees to sell to DECKARD 49 percent (490
          shares) of the common stock of PULLIAM DECKARD FUNERAL
          CHAPEL, P.C., an Illinois Corporation, for the sum of
          $789.00 per share, for a total of $386,610, payable by
          DECKARD to PULLIAM as follows:
                    A. $40,000 upon execution of this Agreement,
          the receipt and sufficiency of which is hereby
          acknowledged.
                    B. The remaining balance of $346,610,
          together with interest thereon at the rate of 10
          percent per annum amortized over a period of 15 years,
          shall be paid by DECKARD to PULLIAM in equal annual
          installments of $45,570.13, which includes principal
          and interest, beginning March 15, 1993, and the same
          amount on the same date of each year thereafter until
          March 15, 2002, at which time the entire remaining
          balance of principal and interest owing under this
          Agreement must be paid in full. Payment shall be
                   - 11 -

applied first to pay interest and then to reduce
principal.
               *   *   *   *   *   *   *

          D. Concurrently with the execution of this
Agreement, PULLIAM shall deliver the stock being sold
to DECKARD to The First National Bank in Robinson as
escrow agent, said stock to be endorsed in blank for
transfer. Said escrow agent shall hold the stock being
sold until satisfactory proof has been furnished to the
escrow agent that the purchase price hereunder,
together with interest as herein provided, has been
fully paid, and upon satisfactory proof of payment of
the purchase price in full shall deliver such stock to
DECKARD. If DECKARD shall fail to make any installment
payment when due and shall not correct such failure
within 90 days thereafter, following notice by PULLIAM,
then at the option of PULLIAM this Agreement shall be
terminated. Upon termination, the parties shall cause
a portion of the stock covered by this Agreement to be
transferred to DECKARD, said portion being the amount
which DECKARD has made principal payments on based upon
a price per share of $789.00 excluding any fractional
shares. The balance of the stock shall be transferred
to PULLIAM. The escrow agent may conclusively rely on
the Affidavit of PULLIAM that DECKARD is in default
hereunder and of PULLIAM's election to terminate this
Agreement. It is understood and agreed by all parties
hereto that the escrow agent assumes no personal
liability except for fraud knowingly committed. The
escrow agent shall be entitled to a reasonable fee for
his services under this Agreement. The cost of such
fee shall be shared equally by PULLIAM and DECKARD and
shall be paid directly to the escrow agent as and when
billed.
          E. So long as DECKARD shall not be in
default under the provisions of this Agreement, he
shall have all of the voting and other customary rights
of a shareholder of record with respect to the stock
being purchased from PULLIAM. In the event DECKARD
shall be in default under the provisions of this
Agreement, then his voting and other rights shall cease
and such rights shall be vested in PULLIAM..
          F. During the term of this Agreement,
neither DECKARD nor PULLIAM shall take any action to
cause any additional shares of common capital stock of
the Corporation to be issued.
               *   *   *   *   *   *   *
                                - 12 -

               3. All costs relating to the formation and
          organization of PULLIAM DECKARD FUNERAL CHAPEL, P.C.,
          an Illinois Corporation, including but not limited to
          all documents preparation expenses, all legal fees,
          accounting fees, real estate and income taxes,
          appraisal fees, postage, fax charges, federal express
          costs, travel expenses and all other costs incurred
          shall be paid by the parties on a prorata basis in
          relation to their respective stock ownership. Any of
          said expenses paid in advance by PULLIAM or PULLIAM
          FUNERAL HOMES, P.C. shall likewise be reimbursed to
          PULLIAM or to PULLIAM FUNERAL HOMES, P.C. on said
          prorata basis.
               4. DECKARD agrees not to compete with PULLIAM or
          PULLIAM FUNERAL HOMES, P.C., under the same terms and
          conditions as are contained in Paragraph 7 of the
          EMPLOYMENT AGREEMENT attached hereto and incorporated
          herein by this reference as Exhibit B. For a period of
          three years from the date of this agreement, PULLIAM,
          individually and on behalf of PULLIAM FUNERAL HOMES
          P.C., agrees not to compete with PULLIAM DECKARD
          FUNERAL CHAPEL, P.C., for funeral business in Oblong,
          Illinois.
                         *   *   *   *   *   *   *

               13. This agreement shall be governed by the laws
          of the State of Illinois.

     The $789 per share fair market value of Chapel's stock was

based on the appraisal report of Vanderlyn R. Pine dated January

9, 1992, which determined that the total fair market value of the

Oblong facility was $789,500.    The net taxable basis of the

Oblong facility was $227,274.09 as of December 31, 1991.    Chapel

had total assets of $301,871, total liabilities of $43,124.56,

and retained earnings of $258,746.44 as of December 31, 1992,

according to a financial statement prepared by the Kemper CPA

Group.

     On January 1, 1992, a spin-off of Homes' assets and

liabilities with respect to the Oblong funeral home was
                              - 13 -

consummated.   Chapel was incorporated as a professional

corporation to accept transferred assets and liabilities from

Home.   A professional service corporation license was issued to

Chapel by the State of Illinois.

     On January 1, 1992, Homes received 1,000 shares of Chapel

common stock, and on the same date distributed the 1,000 shares

of Chapel stock to Mr. Pulliam as its sole shareholder.     Also on

January 1, 1992, the 1,000 shares of Chapel common stock were

surrendered by Mr. Pulliam in exchange for two certificates:       No.

2 for 510 shares and No. 3 for 490 shares.

     On March 6, 1992, Mr. Pulliam transferred certificate No. 3

to the First National Bank of Robinson as escrow agent pursuant

to the Agreement and Stock Purchase Agreement between him and

Mr. Deckard.   Mr. Pulliam received the initial $40,000 payment

from Mr. Deckard in 1992 pursuant to the Agreement.

     By the terms of the Employment Agreement Mr. Deckard was to

provide management and other services as funeral director and

assist in the overall operation and supervision of the Oblong

facility, and to preserve and increase its goodwill.     His

compensation was $39,000 per year.     It contained, among other

provisions, a covenant not to compete with Chapel for a period of

3 years after the termination of his employment.     It also

contained a non-solicitation clause and a covenant for the

protection of confidential information.
                              - 14 -

     Homes and Chapel were engaged immediately after the

distribution in the active conduct of the funeral business.

     The funeral business was actively conducted by Homes

throughout the 5-year period ending on the date of the

distribution.

     In 1993 Mr. Deckard paid his first annual installment of

$45,570.13 to Mr. Pulliam under the Agreement.   Petitioners

timely paid taxes on that installment payment.

     Mr. Deckard defaulted in 1994 on the installment sale.    His

employment by Chapel then ended.   He demanded that Mr. Pulliam

return the payments he had made, but later settled for $5,000.

After defaulting, Mr. Deckard abided by his covenant not to

compete with Chapel, which prevented him from working as a

funeral director in Oblong.   Mr. Pulliam reacquired almost all of

Chapel's common stock as the result of Mr. Deckard's default

under the terms of paragraphs 1 D and E of their Agreement.

     At all times after Chapel was created as a professional

corporation, Mr. Pulliam was president and majority owner of

Chapel's stock, and was in ultimate control of its operations.

     In the notice of deficiency respondent determined that Mr.

Pulliam received dividends of $789,500 from Homes, which were not

reported on petitioners' Federal income tax return for 1992.

Therefore, their taxable income was increased $789,500.

                              OPINION
                              - 15 -

     A corporation generally must recognize gain on the sale or

distribution of appreciated property, including stock of a

subsidiary.   However, distributions of subsidiary stock in

divisive transactions governed by section 3554 are tax-free to

     4
          SECTION 355. DISTRIBUTION OF STOCK AND SECURITIES OF A
CONTROLLED CORPORATION.
     (a) Effect on Distributees.-
        (1) General Rule.-If-
           (A) a corporation (referred to in this section as the
        "distributing corporation")-
               (i) distributes to a shareholder, with respect to
         its stock, or
               (ii) distributes to a security holder, in exchange
         for its securities,

         solely stock or securities of a corporation (referred to
         in this section as "controlled corporation") which it
         controls immediately before the distribution,
            (B) the transaction was not used principally as a
         device for the distribution of the earnings and profits
         of the distributing corporation or the controlled
         corporation or both (but the mere fact that subsequent
         to the distribution stock or securities in one or more
         of such corporations are sold or exchanged by all or
         some of the distributees (other than pursuant to an
         arrangement negotiated or agreed upon prior to such
         distribution) shall not be construed to mean that the
         transaction was used principally as such a device),
            (C) the requirements of subsection (b) (relating to
         active businesses) are satisfied, and
            (D) as part of the distribution, the distributing
         corporation distributes-
                (i) all of the stock and securities in the
            controlled corporation held by it immediately before
            the distribution, or
                (ii) an amount of stock in the controlled
            corporation constituting control within the meaning
            of section 368(c), and it is established to the
            satisfaction of the Secretary that the retention by
            the distributing corporation of stock (or stock and
            securities) in the controlled corporation was not in
            pursuance of a plan having as one of its principal
            purposes the avoidance of Federal income tax,
                                                    (continued...)
                                   - 16 -

both the distributing corporation and to the distributee

shareholders.

       There are four basic statutory requirements that must be

satisfied to have a tax-free corporate division under section

355.       They are:   (1) Solely stock or securities of a controlled

corporation must be distributed to shareholders with respect to

their stock in the distributing corporation or to security

holders in exchange for the distributing corporation's

securities; (2) the distribution must not be used principally as

a device for distributing earnings and profits; (3) the active

business requirement of section 355(b) must be met; and (4) all

of the controlled corporation's stock and securities held by the

distributing corporation, or enough to constitute control of the

controlled corporation, must be distributed.       In addition to the

statutory requirements, a corporate business purpose requirement

and a continuity of proprietary interest requirement apply to

spin-offs.       Secs. 1.355-1(b), 1.355-2(b) and (c), Income Tax

Regs.

Petitioners' Contentions

       Petitioners contend that the spin-off by Homes of the Chapel

stock to Mr. Pulliam qualifies as a tax-free distribution

pursuant to section 355.       They argue that there were strong

       4
        (...continued)
       then no gain or loss shall be recognized to (and no amount
       shall be includable in the income of) such shareholder or
       security holder on the receipt of such stock or securities.
                              - 17 -

corporate business purposes for Homes to create Chapel because it

wanted to protect itself from any possible competition by Mr.

Deckard in the funeral business in the Oblong area, and it wanted

to reemploy Mr. Deckard as a key employee to operate and manage

the Oblong facility.   They also argue that Homes had to

distribute Chapel's stock to Mr. Pulliam because it was believed

that Illinois law required funeral homes to be professional

service corporations having shareholders who are licensed by the

State of Illinois as funeral directors and embalmers.   Thus,

petitioners maintain that both of these corporate business

purposes are strong evidence of nondevice which overcomes the

evidence that there was principally a device for the distribution

of the earnings and profits of Homes or Chapel or both.

Respondent's Contentions

     To the contrary, it is respondent's position that this

transaction fails to qualify as a tax-free distribution of stock

under section 355 and the applicable regulations.   Respondent

argues that there was no corporate business purpose for the

distribution by Homes of Chapel stock to Mr. Pulliam, and that

there was no compelling reason to distribute Chapel's stock to

Mr. Pulliam other than to distribute substantial earnings and

profits of Homes to Mr. Pulliam without being subject to the

dividend provisions of section 301.    It is further argued that,

when Homes distributed the Chapel stock, Illinois law relating to

funeral homes did not require that Chapel be a professional
                               - 18 -

service corporation, whose shareholders are licensed funeral

directors and embalmers, rather than a regular corporation.

Thus, respondent contends that various devices present here

clearly show that the transaction was used principally as a

device for the distribution of Homes' earnings and profits.     In

addition, respondent asserts that the business objectives of

Homes could have been satisfied without a distribution to Mr.

Pulliam either by having Mr. Deckard purchase 49 percent of the

Chapel stock from Homes or by having Mr. Deckard purchase newly

issued Chapel stock from Chapel.

Device and Nondevice

     At the outset it is important to note that, after a spin-

off, a shareholder can sell or exchange stock in either the spin-

off corporation or the distributing corporation in a transaction

qualifying for capital gains treatment.    The shareholder will get

this favorable capital gains treatment even though he continues

to hold stock representing part of his investment.    Therefore,

under certain circumstances, a spin-off can be used to avoid the

ordinary income tax treatment imposed on dividends to bail out

corporate earnings.    Although the differences between the

treatment of capital gains and ordinary income have narrowed

since section 355 was first enacted, capital gains treatment

continues to be preferable in certain respects.    Because of

continuing Congressional concern that a spin-off might be used to

avoid the tax on dividends, section 355(a)(1)(B) provides that a
                                - 19 -

spin-off cannot qualify as tax-free if it is used principally as

a "device" to distribute earnings and profits.

     Whether the distribution in this case qualifies as tax-free

under section 355 turns upon the answer to the narrow question of

whether the device factors present in the transaction outweigh

the nondevice factors.   If the device factors are predominant,

the spin-off cannot qualify as tax-free because it has been used

principally as a device for the distribution of earnings and

profits of the distributing corporation (Homes) or the controlled

corporation (Chapel) or both.    On the other hand, if the

nondevice factors are strong enough to overcome the device

factors, the spin-off will qualify as tax-free.    Sec. 1.355-

2(d)(2) and (3), Income Tax Regs.    The determination must be

based on all the facts and circumstances.    Sec. 1.355-2(d)(1),

Income Tax Regs.

Device Factors

     A sale of stock after a spin-off is "evidence of device".

Sec. 1.355-2(d)(2)(iii)(A), Income Tax Regs.    A subsequent sale

of stock pursuant to an arrangement negotiated or agreed upon

before the distribution is "substantial evidence of device".

Sec. 1.355-2(d)(2)(iii)(B), Income Tax Regs.    In this case it was

clearly prearranged that, after the spin-off of stock in Chapel

to Mr. Pulliam, he would make an installment sale of 490 shares

of that stock to Mr. Deckard.    Thus, there is substantial

evidence of device.
                                - 20 -

     Generally, the greater the percentage of the stock sold

after the distribution, the stronger the evidence of device.       In

addition, the shorter the period of time between the distribution

and the sale, the stronger the evidence of device.     Sec. 1.355-

2(d)(2)(iii), Income Tax Regs.     Here 49 percent of Chapel's stock

was sold to Mr. Deckard, and the distribution and the sale of

stock were both deemed to have taken effect as of January 1,

1992.     In no event did the sale take place later than March 6,

1992, when 490 shares of Chapel stock were placed in escrow with

the First National Bank of Robinson pursuant to the Agreement and

Stock Purchase Agreement between Mr. Pulliam and Mr. Deckard.

     Mr. Pulliam, through his attorney and accountants,

completely dominated, controlled, and arranged the creation of

Chapel and the transfer of all of its shares directly to himself.

By contrast, Mr. Deckard was unrepresented and did not

significantly influence the structuring of the transaction or the

preparation of the legal documents.

Nondevice Factors

        Among nondevice factors is a corporate business purpose.

Sec. 1.355-2(d)(3)(ii), Income Tax Regs.     Since any spin-off must

have a corporate business purpose to qualify as tax-free, this

nondevice factor will always be present to some extent in any

qualifying spin-off.     Under the balancing approach adopted in the

regulations, the stronger the evidence of device, the stronger

the corporate business purpose that is necessary to prevent a
                               - 21 -

determination that the transaction was used principally as a

device.   Id.   Factors that are relevant in weighing the strength

of the business purpose include:    (1) The importance of achieving

the purpose to the success of the business; (2) the extent to

which the transaction is prompted by a person not having a

proprietary interest in either corporation, or by other outside

factors beyond the control of the distributing corporation; and

(3) the immediacy of the conditions prompting the transaction.

Sec. 1.355-2(d)(3)(ii)(A),(B) and (C), Income Tax Regs.    As

reflected in our findings of fact, two strong corporate business

purposes for the spin-off are present in this case.    If Mr.

Deckard had carried out his plans to build and operate a funeral

home in Oblong in competition with Homes it would have divided

the funeral business in that area, thus having an adverse impact

on Homes' profits.   In addition, the services of an experienced

funeral director and key employee (Mr. Deckard) would have been

lost to the Homes organization.    These purposes were vitally

important to the continued success of Homes' business.    The

transaction was prompted by the actions of Mr. Deckard, who had

no proprietary interest in Homes at that time.    The immediate

possible threat of competition to Homes in Oblong prompted the

transaction.

Independent Corporate Business Purposes

     Section 1.355-2(b)(1), Income Tax Regs., provides an

affirmative requirement that a spin-off have one or more
                               - 22 -

corporate business purposes.   This is independent of the device

test.   The requirement limits tax-free treatment under section

355 to spin-offs motivated by non-tax business reasons, and thus

prevents tax avoidance opportunities from arising.   Id.    Section

1.355-2(b)(2), Income Tax Regs., defines a corporate business

purpose as a real and substantial non-Federal tax purpose germane

to the distributing corporation, the controlled corporation, or

the affiliated group to which the distributing corporation

belongs.   Although respondent maintains that a purely shareholder

purpose will not support a tax-free spin-off, there are some

situations in which a shareholder purpose may be so intertwined

with a corporate business purpose that it is not practical to

separate the two.   In such a case, the transaction is considered

carried out for a corporate business purpose.   Sec. 1.355-

2(b)(2), Income Tax Regs.   See Estate of Parshelsky v.

Commissioner, 303 F.2d 14 (2d Cir. 1962), reversing and remanding

34 T.C. 946 (1960), on remand T.C. Memo. 1963-187, holding that a

shareholder non-tax purpose may be an adequate business purpose

for a spin-off.   See also Rafferty v. Commissioner, 452 F.2d 767

(1st Cir. 1971), affg. 55 T.C. 490 (1970), and Wilson v.

Commissioner, 353 F.2d 184 (9th Cir. 1965), reversing and

remanding 42 T.C. 914 (1964), which approached the business

purpose issue from different theoretical bases.   In Rafferty,

evidence of lack of business purpose was considered by the Court

of Appeals as bearing on the "device" requirement.   In Wilson,
                              - 23 -

the Court of Appeals assumed that a spin-off must satisfy an

independent business purpose test.     However, both courts reached

the same practical result; i.e., a spin-off with a strong bailout

potential will qualify under section 355 only if compelling

business purposes for the spin-off can be shown.

     In this case, as we have previously indicated, independent

corporate business purposes existed for the transaction.    The

protection against competition and the retention of a key

employee are both strong and compelling business purposes, not

only for Homes but also for Mr. Pulliam, its sole shareholder.

     Respondent stresses that there must be a business purpose

not only for dividing the business into separate corporations,

but also for direct ownership of the corporations by the

shareholders.   See Estate of Parshelsky v. Commissioner, 303 F.2d

at 20; Bonsall v. Commissioner, 317 F.2d 61, 65 (2d Cir. 1963),

affg. T.C. Memo. 1962-151.   Petitioners assert that they believed

Illinois law required Chapel's shareholders to be individuals,

who were licensed funeral directors and embalmers, rather than a

corporation, and therefore it was necessary to create Chapel as a

professional service corporation with Mr. Pulliam owning its

stock before the installment sale of 490 shares to Mr. Deckard.

Respondent disputes this assertion as being incorrect and

misleading.   It is argued that Illinois law did not require Homes

to distribute Chapel's stock to Mr. Pulliam, but it could have

held the stock in Chapel and sold 490 shares directly to Mr.
                               - 24 -

Deckard.    Thus, respondent argues, "the unnecessary use of a

professional service corporation, coupled with the specious

argument that a professional service corporation was required by

Illinois law, demonstrates an obvious attempt to structure the

transaction to avoid the provisions of section 355(a)(1)(B)".

     We agree with petitioners.   Mr. Pulliam's attorney and

accountants reasonably believed that it was necessary to create

Chapel as a professional service corporation, and in our judgment

their belief was well founded.    It is unlawful for any person to

practice, or attempt to practice, funeral directing and embalming

in the State of Illinois without being licensed by that State.

225 Ill. Comp. Stat. 41/5-5 and 41/10-5 (West 1993).    No

corporation, partnership, or association of individuals, as such,

shall be issued a license as a licensed funeral director and

embalmer.    However, nothing in the Illinois Funeral Directors and

Embalmers Licensing Act restricts licensees from forming

professional service corporations under the Illinois Professional

Service Corporation Act or from having these corporations

registered for the practice of funeral directing.    225 Ill. Comp.

Stat. 41/15-50 (West 1993).    Therefore, the only way to

incorporate Chapel was through a professional service

corporation.    A professional corporation means a corporation

organized under the Illinois Professional Service Corporation Act

solely for the purpose of rendering one category of professional

service, and which has as its shareholders only individuals who
                              - 25 -

are duly licensed by the State of Illinois.    805 Ill. Comp. Stat.

10/3.4 (West 1993).   No corporation organized under the Illinois

Professional Service Corporation Act may issue any of its capital

stock to anyone other than an individual who is duly licensed.

805 Ill. Comp. Stat. 10/11.   In order to open, operate, or

maintain an establishment under the Professional Service

Corporation Act, the corporation must have a certificate of

registration.   One requirement for obtaining the certificate of

registration is that the shareholders must be licensed.    805 Ill.

Comp. Stat. 10/12 (West 1993).

     Although unlicensed owners of funeral directing and

embalming establishments are allowed under 225 Ill. Comp. Stat

41/1-20 (West 1993), the unlicensed owner is not allowed to

"engage in any form of funeral directing and embalming".   225

Ill. Comp. Stat. 41/1-20(b) (West 1993).   In addition, 805 Ill.

Comp. Stat. 10/4 (West 1993) provides that the provisions of the

Professional Service Corporation Act do not repeal, modify, or

restrict provisions of law that regulate several professions

"except insofar as such laws are in conflict with the provisions

of this Act [the Professional Service Corporation Act]".   This

language indicates that the Professional Service Corporation Act

controls in any real or perceived conflict between the Illinois

code provisions regarding unlicensed owners.   Hence unlicensed

ownership of a professional service corporation engaged in
                              - 26 -

funeral directing seems to be barred by 805 Ill. Comp. Stat.

10/15 (West 1993).

     Arguably under these Illinois corporate requirements, we

think that initially only Mr. Pulliam (and later Mr. Deckard)

could have held Chapel's stock.   Homes could not have done so.

Consequently, Homes' distribution of Chapel's stock to Mr.

Pulliam had a definite business purpose.

     Section 1.355-2(b)(3), Income Tax Regs., states that a

distribution is not carried out for a valid corporate business

purpose if the business purpose can be achieved through a

nontaxable transaction that does not involve the distribution of

stock of a controlled corporation and which is neither

impractical nor unduly expensive.    In the circumstances of this

case we think the corporate business purpose of bringing Mr.

Deckard back as a key employee of the Oblong facility and

providing him with a minority interest in Chapel could not have

been achieved without an installment sale because of Mr.

Deckard's financial condition and the Illinois Professional

Corporation Act requirement that licensed individuals be the

stockholders of Chapel.   Homes could not have owned the Chapel

stock during the installment sale.     Consequently, we reject

respondent's arguments that the business objectives of Homes

could have been achieved in a nontaxable transaction without a

distribution of Chapel stock to Mr. Pulliam.
                              - 27 -

     Both parties have cited and relied on various revenue

rulings.   We have considered them, but find that they are

factually distinguishable from this case.   Hence we have placed

no reliance on them in reaching our conclusion.

     We also find Example (1) of section 1.355-2(d)(4), Income

Tax Regs., to be distinguishable from the facts of the instant

case.   In Example (1) corporation X, whose stock was owned solely

by individual A, distributed the stock of Y, a wholly owned

subsidiary of X, to A, so that individual B, a key employee,

could afford to purchase stock in X.   After the distribution of

the Y stock, A sold some of his X stock to B.   Because X could

have issued additional shares to give B an equivalent interest in

X, the sale of X stock by A is deemed to be substantial evidence

of device, and the transaction is considered to be used

principally as a device.   Here, by contrast, no additional stock

could have been issued by Homes because Mr. Deckard did not want

Homes' stock, Homes could not be a stockholder of Chapel under

Illinois law, Mr. Pulliam and Homes would not sell Homes' stock

to Mr. Deckard, and, in any event, Mr. Deckard could not afford

to purchase any meaningful amount of Homes' stock.   The entire

distribution in Example (1) of section 1.355-2(d)(4), Income Tax

Regs., was made so that the key employee could afford to buy

stock in the distributing corporation, as opposed to the

controlled corporation in this case.   As a result, the fact
                                - 28 -

pattern in Example (1) is different from the situation present in

the instant case.

Conclusions

     Based on all the facts and circumstances present in this

record, we conclude, on balance, that the strong corporate

business purposes and nondevice factors outweigh and overcome the

device factors, so that the distribution by Homes of Chapel stock

to Mr. Pulliam qualifies as tax-free under section 355.      However,

we sustain respondent's determination that petitioners are

taxable on the $40,000 received in 1992 from Mr. Deckard on the

installment sale of 49 percent of Chapel's stock, which they did

not report on their Federal income tax return for that year.

Petitioners are also liable for the accuracy-related penalty

under section 6662(a) with respect to the $40,000 omitted from

their 1992 return.

     Respondent raised a new and alternative issue for the first

time at trial and on brief.     That issue is whether Homes, in

substance, distributed enough stock in Chapel to constitute

control within the meaning of section 368(c), as required by

section 355(a)(1)(D).     This was not an issue or ground contained

in the notice of deficiency or in respondent's answer to the

petition.     Respondent filed no amendment to the answer raising

this issue.     Petitioners have opposed the untimely raising of

this issue.     We agree with petitioners.   We conclude that the

issue is not properly before us and therefore we need not
                               - 29 -

consider it.   Rule 31(a) specifically provides that "The purpose

of the pleadings is to give the parties and the Court fair notice

of the matters in controversy and the basis for their respective

positions."    See also Rule 36(b); Seligman v. Commissioner, 84

T.C. 191, 197-199 (1985), affd. 796 F.2d 116 (5th Cir. 1986);

Barber-Greene Americas, Inc. v. Commissioner, 35 T.C. 365, 390

(1960); Kaplan v. Commissioner, 21 T.C. 134, 147 (1953).

     To reflect uncontested determinations and our conclusions

with respect to the disputed issues,



                                     Decision will be entered

                                under Rule 155.
