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initial nonrecourse financing and the guarantees made to the
partners by other participants in the transaction, together with
other features of the transaction, such as the essentially
offsetting nature of the various lease and note payments. Id.
The Commissioner contends that the financial structure of the
transaction in Opal Leasing is indistinguishable from the
financial structure of the transactions in Waters for purposes of
section 465(b)(4).
On March 24, 1994, the IRS sent petitioners proposed
decision documents, based on the decision in Thornock v.
Commissioner, 94 T.C. 439 (1990), reflecting the terms of the
closing agreement. On September 9, 1994, the IRS sent
petitioners a letter reminding them that they had failed to sign
and return the proposed decision documents and requesting that
they do so as soon as possible. When petitioners did not return
the signed decision documents, the Commissioner filed a motion
for summary judgment to enforce the terms included in both the
closing agreement and the proposed decision documents.
Petitioners filed a response to the motion for summary judgment
as well as their own motion for leave to amend their petition.
In each, they contend, in reliance upon section 7121(b)(2), that
"Entry of Decision in this docketed case would have the
prohibited effect of setting aside the Closing Agreement". No
such contention had previously been made, and petitioners' motion
to amend their petition seeks for the first time to inject the
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