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We think petitioner oversimplifies the situation. It is
technically correct that those decisions only went as far as
determining that the taxpayers had not carried their burden that
they were at risk. But it does not follow that the elements
which formed the foundation of those decisions were not
sufficient to support a decision that a taxpayer is in fact not
at risk, a position on which respondent has the burden of proof
herein. Our task is to decide whether the record herein contains
sufficient evidence to enable us to hold that respondent has
carried that burden.
We think that the circularity of payments, the deferral
provisions, and the indemnity provisions, each of which
independently might not have risen to the level of "other similar
arrangements" under section 465(b)(4), when taken together, are
sufficient to satisfy respondent's burden that decedent, while
nominally "personally liable" for the assumed liabilities under
section 465(b)(2), was effectively immunized from any realistic
possibility of suffering an economic loss under section
465(b)(4), was not at risk, and is not entitled to the deductions
in question. Levien v. Commissioner, 103 T.C. 120 (1994). We so
hold.
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