- 23 -
holding that the taxpayer was not at risk for purposes of section
465(b)(4), we found that the differences between that case and
the other cases applying the "economic reality" standard were
simply window dressing. See Hayes v. Commissioner, supra; Moser
v. Commissioner, T.C. Memo. 1989-142, affd. 914 F.2d 1040 (8th
Cir. 1990). We see the facts of this case similarly. While one
could certainly distinguish the instant case on certain points
from many of the cases cited by the parties,10 we do not, in the
final analysis, find it sufficiently distinguishable, so that we
could find that decedent was at risk for the amounts of assumed
indebtedness.
Petitioner points out that the decisions supporting
respondent's position herein, including those which we have cited
and many others, have been decided on the basis of the taxpayers'
failure to carry their burden of proof that they were at risk and
do not hold that the taxpayers were not at risk. On this ground,
petitioner argues that those decisions are not sufficient to
permit us to conclude herein that respondent has carried the
burden of proving that the decedent was not at risk in respect of
his share of the partnership obligations which he assumed.
10 In particular, we find many cases where this Court has
held for the taxpayer on the at-risk issue in similar
transactions unhelpful because the Court used a "worst case
scenario" standard instead of the "realistic possibility"
standard now used by this Court. See Levy v. Commissioner, 91
T.C. 838 (1988); Emershaw v. Commissioner, T.C. Memo. 1990-246,
affd. 949 F.2d 841 (6th Cir. 1991); Brady v. Commissioner, T.C.
Memo. 1990-626.
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