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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 15-60527                        November 15, 2016
                                                                             Lyle W. Cayce
MONEYGRAM INTERNATIONAL, INCORPORATED AND                                         Clerk
SUBSIDIARIES,

              Petitioner–Appellant,

v.

COMMISSIONER OF INTERNAL REVENUE,

              Respondent–Appellee.




                          Appeals from the Decision of the
                             United States Tax Court
                                 TC No. 12231-12
                                 TC No. 30309-12


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Ordinarily, a corporation may only deduct its capital losses from its
capital gains. The Tax Code, however, provides an exception for banks, which
are permitted to deduct capital losses against ordinary income. On its 2007 and
2008 tax returns, Petitioner−Appellant MoneyGram International, Inc. and its




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-60527
subsidiaries (collectively, “MoneyGram”) deducted its capital losses against its
ordinary income under this exception. Respondent–Appellee Commissioner of
Internal Revenue (“Commissioner” or “IRS”) disagreed as to whether
MoneyGram was a “bank” and issued deficiency notices for the relevant tax
years. MoneyGram petitioned the             United   States    Tax Court for       a
redetermination of its tax liabilities, and at summary judgment, the Tax Court
held that MoneyGram was not a “bank” as defined by 26 U.S.C. § 581 and thus
could not offset its capital losses against ordinary income under 26 U.S.C.
§ 582. Because we hold that the Tax Court applied incorrect definitions of
“deposits” and “loans” in analyzing whether MoneyGram was a bank under
§ 581, we vacate its order and remand for reconsideration consistent with this
opinion.
                             I.    BACKGROUND
       The material issue on appeal is whether MoneyGram is a “bank” as
defined by 26 U.S.C. § 581. This provision defines “bank” in relevant part as
follows:
       For purposes of sections 582 and 584, the term “bank” means a
       bank or trust company incorporated and doing business under the
       laws of the United States (including laws relating to the District of
       Columbia) or of any State, a substantial part of the business of
       which consists of receiving deposits and making loans and
       discounts, . . . and which is subject by law to supervision and
       examination by State, Territorial, or Federal authority having
       supervision over banking institutions.
Id.
       At summary judgment, the Tax Court held that MoneyGram did not
meet this definition for several reasons. First, the Tax Court stated that § 581
requires an entity to be a “bank” within the common meaning of that term. The
Tax Court then held that MoneyGram did not meet the common meaning of
this term, which it defined to include “(1) the receipt of deposits from the

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general public, repayable to the depositors on demand or at a fixed time, (2)
the use of deposit funds for secured loans, and (3) the relationship of debtor
and creditor between the bank and the depositor.”
      The Tax Court also held that MoneyGram did not satisfy § 581 because
“receiving deposits and making loans do not constitute any meaningful part of
MoneyGram’s business, much less ‘a substantial part.’” Because § 581 does not
define “deposits” or “loans” the Tax Court drew its own definitions. As for
“deposits,” the Tax Court held that in the context of § 581, this term means
“funds that customers place in a bank for the purpose of safekeeping,” that are
“repayable to the depositor on demand or at a fixed time,” and which are held
“for extended periods of time.” The Tax Court held that money received by
MoneyGram as part of its money order and financial services segments did not
meet this definition because MoneyGram does not hold these funds for
safekeeping or for an extended period of time.
      With regard to “loans,” the Tax Court held that this term means an
agreement, “memorialized by a loan instrument” that “is repayable with
interest,” and that “generally has a fixed (and often lengthy) repayment
period.” The Tax Court held that the Master Trust Agreements entered into
between MoneyGram and its agents do not meet this definition and are
therefore not loans. Specifically, the Tax Court focused on the fact that the
instrument used to memorialize this agreement is facially a trust agreement
and not a loan agreement, and does not charge interest.
                       II.   STANDARD OF REVIEW
      We review the decision of the Tax Court “in the same manner . . . as
decisions of the district courts.” Whitehouse Hotel Ltd. P’ship v. C.I.R., 615 F.3d
321, 330 (5th Cir. 2010) (quoting 26 U.S.C § 7482(a)). “We therefore examine
this decision [de novo] as we do other summary judgment decisions.” Deaton v.
C.I.R., 440 F.3d 223, 226 (5th Cir. 2006) (quoting San Antonio Sav. Ass’n v.
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C.I.R., 887 F.2d 577, 581 (5th Cir. 1989)). Questions of statutory interpretation
are issues of law and are reviewed without deference to the Tax Court. Howard
Hughes Co., v. C.I.R., 805 F.3d 175, 180 (5th Cir. 2015).
                             III.    DISCUSSION
A.    Bank or Trust Company
      Section 581 begins: “For purposes of sections 582 and 584, the term
‘bank’ means a bank or trust company incorporated and doing business under
the laws of the United States (including laws relating to the District of
Columbia) or of any State . . . .” 26 U.S.C. § 581. The Tax Court held that this
imposes the requirement that an entity seeking classification as a “bank” must
“be incorporated and must be a bank or trust company within the common
understanding of those terms.” Quoting the Fourth Circuit in Staunton
Industrial Loan Corp. v. Commissioner, 120 F.2d 930 (4th Cir. 1941), the Tax
Court next held that the common meaning of “bank” includes the “bare
requisites” of “(1) the receipt of deposits from the general public, repayable to
the depositors on demand or at a fixed time, (2) the use of deposit funds for
secured loans, and (3) the relationship of debtor and creditor between the bank
and the depositor.”
      MoneyGram challenges both the Tax Court’s interpretation of § 581 as
imposing the requirement that an entity be a bank within the common
meaning of that term and its articulation of that common meaning.
Specifically, MoneyGram argues that the Tax Court’s interpretation
impermissibly imposes an “ill-defined extra-statutory requirement that is
inconsistent with the language and purpose of Section 581.” Rather,
MoneyGram argues that the beginning of § 581 only requires that the entity
be “incorporated and operating legally.”
      To be sure, § 581 is not a model of statutory clarity. Its construction and
circular use of the term “bank” are inherently ambiguous. Having carefully
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considered this question, however, we concluded that the most consistent and
harmonious reading of this section supports the Tax Court’s conclusion that
being a “bank” within the commonly understood meaning of that term is an
independent requirement.
      Both parties argue that the canon of interpretation against surplusage
supports its position. The canon disfavoring surplusage is “one of the most
basic interpretive canons.” Corley v. United States, 556 U.S. 303, 314 (2009).
Pursuant to this principle, “[a] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.” Id. at 315 (alteration in original) (quoting Hibbs v. Winn,
542 U.S. 88, 101 (2004)). Accordingly, “[i]n construing a statute we are obliged
to give effect, if possible, to every word Congress used.” Reiter v. Sonotone
Corp., 442 U.S. 330, 339 (1979).
      MoneyGram contends that the Tax Court’s interpretation renders
§ 581’s requirement that a substantial part of the taxpayer’s business consist
of “receiving deposits and making loans and discounts” superfluous because
the Tax Court’s definition of the common meaning of bank also includes the
receipt of deposits and the making of loans. Conversely, the IRS argues that
MoneyGram’s interpretation reads “bank or trust company” out of § 581.
      MoneyGram’s reading of § 581, in which the opening sentence only
requires that an entity be “incorporated and operating legally,” violates the
canon against surplusage. In essence, MoneyGram reads the first portion of §
581 as follows: “For purposes of sections 582 and 584, the term ‘bank’ means
a . . . company incorporated and doing business under the laws of the United
States (including laws relating to the District of Columbia) or of any State.”
Such an interpretation must be disfavored.
      We also find MoneyGram’s argument that incorporating the common
meaning of bank into the statute would render other portions of § 581
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superfluous unavailing. While it is true that the common meaning of bank
adopted by the Tax Court is similar to § 581’s requirement that “a substantial
part of the [taxpayer’s] business . . . consists of receiving deposits and making
loans and discounts,” these components are not completely duplicative. For
instance, an entity could be a bank within the common meaning of the term
but still fail to satisfy § 581’s requirement that receiving deposits and making
loans amount to “a substantial part of [its] business.” In fact, nearly this exact
situation arose in Magruder v. Safe Deposit & Trust Co. of Baltimore, 121 F.2d
981 (4th Cir. 1941). There, the Fourth Circuit considered whether the taxpayer
was a “bank” under § 177(d) of the Revenue Act of 1934. Id. at 982. While
§ 177(d) limited the amount of capital losses that could be claimed, this
limitation did not apply to taxpayers that were “a bank or trust company
incorporated under the laws of the United States or of any State or Territory,
a substantial part of whose business is the receipt of deposits.” Id. (quoting 26
U.S.C. § 177(d)). The court treated each of these components as separate
elements, noting that while it “entertain[ed] no doubt that the taxpayer is a
‘trust company incorporated under the laws’ of Maryland . . . we do not think
it can qualify under the second and equally essential clause of the exempting
statute: ‘a substantial part of whose business is the receipt of deposits.’” Id.
(quoting 26 U.S.C. § 177(d)).
      Put another way, the Tax Court’s interpretation that “bank” must be
given its common meaning, which is in essence the receipt of deposits and
making of loans, is not purely duplicative of § 581’s requirement that “a
substantial part of the [taxpayer’s] business . . . consists of receiving deposits
and making loans and discounts” because this later requirement adds an
important modifier: “substantial part of the business.” Section 581 thus
qualifies these factors, requiring that a taxpayer seeking to take advantage of
this tax benefit not only engage in the touchstone activities of a bank, but that
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these activities amount to a substantial part of its business. As such, the Tax
Court’s interpretation of § 581 gives each clause independent meaning and
effect.
          MoneyGram’s interpretation is also at odds with the way courts typically
address circular       definitions. A circular definition is one in which
“the term being defined is used within its own definition.” Brewington v. State
Farm Mut. Auto. Ins. Co., 45 F. Supp. 3d 1215, 1219 (D. Nev. 2014). When
confronted with such definitions, courts do not simply read out the seemingly
redundant text as MoneyGram asks us to do here. Instead, courts have
consistently sought to give that statutory text meaning. See, e.g., Juino v.
Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 434 (5th Cir. 2013).
          For instance, in Fathauer v. United States, 566 F.3d 1352 (Fed. Cir.
2009), the Federal Circuit rejected the notion that a circularly defined term is
inherently meaningless. See id. at 1355. In that case, the question was whether
part-time government workers were entitled to additional pay for working
Sundays under 5 U.S.C. § 5546. Id. at 1353. Relevant to that case, the statute
defined “employee” as “an employee in or under an Executive agency.” Id. at
1355 (quoting 5 U.S.C. § 5541(2)(A)). While the court noted that this definition
was “‘circular’ in the sense that it uses the defined word in the definition,” it
rejected the notion that this rendered the term meaningless. Id. Rather, the
court held that “Congress’s decision to use the word ‘employee’ in the definition
demonstrates that a special definition was unnecessary because the word was
intended to be given its ordinary meaning.” Id.
          Similar to the case at hand, in Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Devon Bank, 832 F.2d 1005 (7th Cir. 1987), the Seventh Circuit
considered an Illinois statute that circularly defined “bank” as “any person
doing a banking business whether subject to the laws of this or any other
jurisdiction.” Id. (quoting Ill. Rev. Stat. ch. 17 ¶ 302 (1986)). Rather than
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simply excise “banking business” from the statute, the Seventh Circuit noted
that “[p]erhaps the statute uses a circular definition because the elements of
banking are not particularly obscure.” Id. It then gave these words their
common meaning by looking to how other statutes, cases, and dictionaries
defined them. Id. at 1006–07.
      For these reasons, we agree with the Tax Court’s interpretation that
“bank” as used in § 581 imposes an independent element and should be given
its common meaning.
      Relying on Staunton, the Tax Court held that the common
understanding of “bank” includes the following “bare requisites”: “(1) the
receipt of deposits from the general public, repayable to the depositors on
demand or at a fixed time, (2) the use of deposit funds for secured loans, and
(3) the relationship of debtor and creditor between the bank and the depositor.”
We agree with this definition as its components are consistent with the
relevant case law and dictionaries.
      For instance, in Magruder, the Fourth Circuit noted that “the
taxpayer . . . was not the type of institution which Congress intended to include
within the exemption as to capital losses” because it “did not receive deposits
from the general public.” 121 F.2d at 981. As the court noted, the taxpayer,
which received funds almost exclusively from either one of its own departments
or a select few “favored corporations” was “not the ordinary commercial
deposits which banks receive” and “confirm[ed] . . . that the taxpayer was quite
without the class intended to be exempted by Congress.” Id. Moreover, we
agree with the Tax Court’s reasoning in Austin State Bank v. C.I.R., 57 T.C.
180 (1971), which explained that the requirement that deposits be made from
the “general public” is meant “merely to differentiate between deposits
received from sources in some way connected with the bank and those received
from ordinary and unrelated customers of banking services.” Id. at 187.
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      The relevant authorities also illustrate that Staunton’s common
meaning of bank correctly includes “secured loans.” For instance, Bouvier’s
Law Dictionary includes in its definition of bank in the commercial context the
“making loans of money on collateral security.” Bouvier’s Law Dictionary 318
(18th ed. 1984). Finally, it is well established that the relationship between a
bank and its depositors is similar to that of debtor and creditor. See, e.g., Tex.
Mortg. Servs. Corp. v. Guadalupe Sav. & Loan Ass’n (In re Tex. Mortg. Servs.
Corp.), 761 F.2d 1068, 1075 (5th Cir. 1985) (“Normally, funds deposited with a
bank are general deposits which create a debtor-creditor relationship between
the bank and its depositor.”); 5A Michie on Banks and Banking ch. IX § 1 at 1
(Paul Ernest, ed., 2014) (same).
      While we agree with the Tax Court in this regard, we disagree with the
manner in which it defined “deposits” and “loans” as relevant both the to this
inquiry and § 581’s later requirement that a substantial part of the taxpayer’s
business consist of receiving deposits and making loans. The appropriate
definitions for these terms are addressed below.
      B.   Deposits
      The Tax Court held that “deposits” means “funds that customers place
in a bank for the purpose of safekeeping” that are “repayable to the depositor
on demand or at a fixed time” and which are held “for extended periods of time.”
We agree with all but the last aspect of this definition.
      As the Tax Court correctly observed, because § 581 refers to deposits in
the banking context, for the purposes of this statute, “deposits” should have a
narrower definition than its broadest possible meaning. See C.I.R. v. Valley
Morris Plan, 305 F.2d 610, 616 (9th Cir. 1962) (“[T]erm ‘deposit’ always has
had a meaning of its own, ‘peculiar to the banking business, and one that the
courts should recognize and deal with according to commercial usage and
understanding.’” (quoting Elliott v. Capital City State Bank, 103 N.W. 777, 778
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(Iowa 1905))). The relevant authorities demonstrate that the essential
elements of a “deposit” include the following. First, a deposit must involve the
placement of funds with another for “safekeeping.” See, e.g., Engel v. O’Malley,
219 U.S. 128, 136 (1911) (“The receipt of money by a bank . . . is in a popular
sense the receipt of money for safekeeping.”); Jackson Fin. & Thrift Co. v.
C.I.R., 260 F.2d 578, 582 (10th Cir. 1958) (“Depositors place their money in
banks primarily for safekeeping.”). Second, those funds must be subject to the
control of the depositor such that they are repayable on demand or at a fixed
time. See Staunton, 120 F.2d at 933–34 (holding that one of the “chief
functions” of a bank is “the receipt of deposits from the general public,
repayable to the depositors on demand or at a fixed time”); 5A Michie on Banks
and Banking ch. IX § 3 at 41−42 (Paul Ernest, ed., 2014) (“[T]he term ‘deposit’
signifies the act of placing money in the ‘custody’ of a bank, to be withdrawn at
the will of the depositor.”).
      We disagree, however, that the definition of “deposit” includes the
requirement that funds be placed for an extended period of time. In support of
imposing this requirement, the Tax Court quotes the following portion of
AmSouth Bancorporation & Subsidiaries v. United States, 681 F. Supp. 698
(N.D. Ala. 1988):
      In the commercial banking industry, deposit relationships
      represent the most favorable source of funds and are one of the
      most important factors with respect to the profitability of a
      commercial bank. Deposit relationships tend to be the focal point
      for other bank customer relationships. Since the ability of a bank
      to attract and retain core deposits is the main factor in the size and
      scope of its business, most banking services are designed to keep
      and develop those deposit relationships. Once a deposit
      relationship is established, it generally will be retained, all things
      being equal, for a period of time with little, if any, need for the
      bank to engage in further direct marketing efforts.



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Id. at 705. In our view, this does not support the Tax Court’s holding. First,
this section of the opinion in AmSouth does not address whether an entity
receives deposits, but rather concerns how to value that entity’s deposit
relationships. See id. Second, this language does not expressly state that
duration is an essential element of a deposit. Rather, it notes only that the
relationship between depositor and depository “generally will be retained, all
things being equal, for a period of time.” Id. It says nothing of the duration of
the actual deposit itself.
      Accordingly, we hold that the Tax Court erred by interpreting “deposit”
to include the requirement that MoneyGram “hold its customers’ funds for
extended periods of time.”
      C.   Loans and Discounts
      The Tax Court defined “loan” as a memorialized instrument that is
repayable with interest, and that “generally has a fixed (and often lengthy)
repayment period.” We disagree with this definition.
      Courts that have considered the meaning of “loans” as used in § 581 and
its predecessor, 26 U.S.C. § 104, have defined this term as “an agreement,
either expressed or implied, whereby one person advances money to the other
and the other agrees to repay it upon such terms as to time and rate of interest,
or without interest, as the parties may agree.” Welch v. C.I.R., 204 F.3d 1228,
1230 (9th Cir. 2000) (quoting Valley Morris Plan, 305 F.2d at 618). In another
context, this Court has similarly stated that a “loan of money is a contract by
which one delivers a sum of money to another and the latter agrees to return
at a future time a sum equivalent to that which he borrows.” Calcasieu-Marine
Nat. Bank of Lake Charles v. Am. Emp. Ins. Co., 533 F.2d 290, 296 (5th Cir.
1976). Notably, courts have repeatedly stated that interest is not required. See,
e.g., Welch, 204 F.3d at 1230.


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      As these cases demonstrate, “[t]he central inquiry for determining if a
transaction is a bona fide loan for tax purposes is whether it is ‘the intention
of the parties that the money advanced be repaid.’” Todd v. C.I.R., 486 F. App’x
423, 426 (5th Cir. 2012) (per curiam) (quoting Moore v. United States, 412 F.2d
974, 978 (5th Cir. 1969)). This is a factual question. See Moore, 412 F.2d at 978.
This Court has endorsed a non-exhaustive seven-factor test to determine
whether the parties to a transaction intended it to be a loan. Todd, 486 F. App’x
at 426. Under this test, courts look to:
      (1) whether the promise to repay is evidenced by a note or other
      instrument; (2) whether interest was charged; (3) whether a fixed
      schedule for repayments was established; (4) whether collateral
      was given to secure payment; (5) whether repayments were made;
      (6) whether the borrower had a reasonable prospect of repaying the
      loan and whether the lender had sufficient funds to advance the
      loan; and (7) whether the parties conducted themselves as if the
      transaction were a loan.
Id. (quoting Welch, 204 F.3d at 1230).
      Accordingly, the Tax Court erred by failing to apply the appropriate
definition of “loan.”
      Additionally, we note that § 581 provides that a substantial part of the
taxpayers business must consist of “making loans and discounts.” 26 U.S.C.
§ 581 (emphasis added). The statute’s use of the conjunctive “and” rather than
the disjunctive “or” in this phrase indicates that “discounts” is a required
element. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal
Texts 116–17 (2012) (observing that the conjunctive use of the word “and”
indicates that each aspect must be satisfied). The Tax Court did not address
whether MoneyGram makes “discounts,” and neither party has presented
argument regarding this requirement on appeal. On remand, the Tax Court is
directed to consider whether MoneyGram satisfies this component of § 581.



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                          IV.    CONCLUSION
     For the foregoing reasons, we VACATE the order of the Tax Court and
REMAND for reconsideration consistent with this opinion.




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WIENER, Circuit Judge, dissenting:

      To qualify as a bank under § 581, MoneyGram must show that it is “a
bank or trust company incorporated and doing business under the laws of the
United States . . . or of any State, a substantial part of the business of which
consists of receiving deposits and making loans and discounts . . . .” The
majority concludes that the Tax Court applied incorrect definitions of
“deposits” and “loans” in analyzing whether MoneyGram was a bank under §
581. But, MoneyGram has wholly failed to adduce any probative evidence to
sustain its burden of proof on summary judgment under any iteration of the
definition of a bank.
      We review the Tax Court’s summary judgment decision de novo. Thus,
even if we assume arguendo that the Tax Court made legal errors in defining
“deposits” and “loans,” there is no reason that we cannot apply the correct
standards to the facts. And, if we do so, we must hold that MoneyGram is not
a bank under § 581.
      The Tax Court’s treatment of “deposits” as “funds . . . placed for an
extended period of time” creates no reversible error. Even accepting that a
“deposit” need only be (1) made for purposes of safekeeping, and (2) repayable
on demand or at a fixed time, MoneyGram’s evidence falls woefully short of
satisfying its burden of proof. This is so, regardless of what the Tax Court said
about deposits being for “an extended period of time,” because MoneyGram has
not proved − and cannot prove − that the “deposits” at issue are made for
purposes of safekeeping. MoneyGram’s customers purchase a product, viz, a
money order; they do not “deposit” funds. MoneyGram’s financial institution
clients plainly do not “deposit” funds for safekeeping.
      Nitpicking some of the definitions of a loan in light of selected portions
of other opinions cannot excuse MoneyGram’s failure, as the taxpayer, to bear

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                                   No. 15-60527
its burden to prove that it does qualify as a bank on this element. The record
demonstrates that MoneyGram simply does not make loans in the well-
established context of “bank” loans. As the Tax Court held, MoneyGram’s
purported “loans” are facially trust agreements. This precludes a finding that
MoneyGram makes loans, regardless of the Tax Court’s consideration of
whether MoneyGram charges interest. Further, if MoneyGram does not
receive “deposits,” there is no way that it can use deposit funds for secured
loans.
         In addition, there can be no “discounts” absent “loans,” ergo, the
conjunctive phrase, “loans and discounts.” Since MoneyGram could never
prove that it made loans in the banking context, there was no need for either
party to address discounts.
         MoneyGram cannot be a bank under § 581 if it fails either the “deposits”
test or the “loans” test. MoneyGram has wholly failed to prove that it either
receives “deposits” or makes “loans.” Even if the issue of whether MoneyGram
makes “loans” is a close call, MoneyGram is not a bank under § 581 for the sole
reason that it does not receive “deposits.” Given MoneyGram’s burden to prove
both loans and deposits under the conjunctive, its failure to prove either one is
fatal.
         Because I would affirm the Tax Court’s determination that MoneyGram
is not a bank for the purposes of § 581, I respectfully dissent.




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