John M. and Rita K. Monahan - Page 31

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               As a preliminary matter, conditions (2) and (3) of the Peck            
          requirements are satisfied, and petitioners reasonably could not            
          have argued to the contrary.  See supra sec. II.C.4.a.  The sua             
          sponte issues are identical in all respects to factual issues               
          that were decided in Monahan I.7  The Court in Monahan I examined           
          petitioner's relationship with Aldergrove, the same partnership             
          in issue in this case, on February 26, 1987, and December 22,               
          1988, and determined that, on those dates, certain interest                 
          payments made to Aldergrove lacked economic substance because               
          petitioner controlled Aldergrove partnership matters and                    
          benefited from and controlled the funds held by Aldergrove.  In             
          addition, the sua sponte issues were actually litigated in                  
          Monahan I, and resolution of those issues was essential to the              
          decision in Monahan I that the interest payments made in 1987 and           
          1988 were not deductible.  Therefore, conditions (1) and (4) of             
          the Peck requirements are satisfied with respect to the sua                 
          sponte issues, and we believe that nothing petitioners could have           
          presented would change our conclusion.  Lastly, condition (5) of            
          the Peck requirements is satisfied; any potential argument                  
          relating to a change in the applicable legal rules would not be             
          tenable, and any potential argument relating to a change in the             

          7    That condition of the Peck requirements is, in fact,                   
          satisfied because those factual issues decided in Monahan I are             
          relevant to the 1991 interest issue.                                        






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