With respect to a closely held business, such offers would ordinarily establish its fair market value. E.g., Julius H. (Groucho) Marx, 29 T.C. 88, 100 (1957). At that time United was conducting an expansion program, which was designed to reduce its overhead expense per dollar of business.
Where individual rights are affected in a case in which there are no formal parties and no appeal or other remedy for an excess of jurisdiction exists, a review by certiorari is allowed to those who are bound by the proceedings. Elliott v. Superior Court, 144 Cal. 501, 508; Campau v. Button, 33 Mich. 525; Wilson v. Bartholomew, 45 Mich. 41; Cowing v. Ripley, 76 Mich. 650; Pingree v. Commissioners, 30 Me. 351; State v. Snedeker, 30 N.J.L. 80; People v. Ford, 112 N.Y.S. 130; Clary v. Hoagland, 5 Cal. 476; State v. Rose, 4 N.D. 319, 329. The writ should have been granted as of right. Matthews v. Matthews, 4 Ired. L. (N.C.) 155; State v. Bill, 13 Ired. L. (N.C.) 373; Queen v. Justices, L.R. 5 Q.B. 473; Re Lord Listowel's Fishery, 9 Ir. C.L., 46 Q.B.
We have found that the exchange transaction in this case had some non-tax-related purposes; furthermore, it is settled that a taxpayer may use any device within the framework of the law to minimize the incidence of taxes. Commissioner v. Tower, 327 U.S. 280, 288-289 (1946); Gregory v. Helvering, 293 U.S. 465 (1935); Cooper Agency, 38 T.C. 709, 715 (1960), affirmed per curiam 291 F.2d 831 (C.A. 4, 1961); Julius H. (Groucho) Marx, 29 T.C. 88, 100 (1957). There is no reason to require that a taxpayer be oblivious to the tax consequences of his acts in order to be allowed a deduction as a result of those acts.
Cf. Herman Shumlin, 16 T.C. 407; Irving Berlin, 42 B.T.A. 668; Nat Holt, supra. See Jack Benny, 25 T.C. 197; Julius H. (Groucho) marx, 29 T.C. 88. This is not to say that personal services were in no way involved in petitioner's contract with the producer.
A long line of cases, including Hort v. Commissioner, supra; Helvering v. Smith, supra; Shuster v. Helvering, 121 F.2d 643 (C.A. 2, 1941), affirming 42 B.T.A. 255; Herman Shumlin, supra; and David L. Gordon, 29 T.C. 510, affd. 262 F.2d 413 (C.A. 5, 1958), have held that the substitution of a lump-sum payment for the right to receive income in the future does not convert what would otherwise have been taxable as ordinary income into capital gain. We think this case is controlled by that line of cases and not by those cases wherein capital gains treatment was allowed to certain entertainers or producers, such as Fred MacMurray, 21 T.C. 15, Jack Benny, 25 T.C. 197, Pat O'Brien, 25 T.C. 376, and Julius H. (Groucho) Marx, 29 T.C. 88. In each of the latter cases, the taxpayers transferred rights in or title to a tangible asset such as a story or a radio or television show under agreements which specified that the negotiated amount was being paid for the tangible asset.