Richard Santulli and Virginia Santulli - Page 23

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          there is any realistic possibility that the taxpayer ultimately             
          will be subject to economic loss on the investment at issue.                
          Levien v. Commissioner, 103 T.C. 120, 126 (1994).                           
               "[T]he purpose of subsection 465(b)(4) is to suspend at                
               risk treatment where a transaction is structured--by                   
               whatever method--to remove any realistic possibility                   
               that the taxpayer will suffer an economic loss if the                  
               transaction turns out to be unprofitable.  A                           
               theoretical possibility that the taxpayer will suffer                  
               economic loss is insufficient to avoid the                             
               applicability of this subsection.  We must be guided by                
               economic reality.  If at some future date the                          
               unexpected occurs and the taxpayer does suffer a loss,                 
               or a realistic possibility develops that the taxpayer                  
               will suffer a loss, the taxpayer will at that time                     
               become at risk and be able to take the deductions for                  
               previous years that were suspended under this                          
               subsection.  I.R.C., sec. 465(a)(2)."                                  
          Waters v. Commissioner, 978 F.2d 1310, 1315 (2d Cir. 1992)                  
          (quoting with approval American Principals Leasing Corp. v.                 
          United States, 904 F.2d 477, 483 (9th Cir. 1990)), affg. T.C.               
          Memo. 1991-462.                                                             
               The question presented is one of fact, and petitioners bear            
          the burden of proof.  Rule 142(a).  With regard to leasing                  
          activities, we scrutinize the economic reality of the                       
          transaction, focusing in particular upon the relationships                  
          between the parties, whether the underlying debt is nonrecourse,            
          the presence of offsetting payments and bookkeeping entries, the            
          circularity of the transaction, and the presence of any payment             
          guarantees or indemnities.  See Waters v. Commissioner, supra at            
          1316-1317; Young v. Commissioner, 926 F.2d 1083, 1088 (11th Cir.            
          1991), affg. T.C. Memo. 1988-440; Moser v. Commissioner, 914 F.2d           




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