- 10 - interest is relevant both to determining the true substance of the transaction and to determining whether petitioner was "at risk" for purposes of section 465(b)(4). We must first address the question of the economic substance of the transaction. In support of her contention that the economic substance of the transaction is in dispute, respondent directs our attention to the fact that the remarketing agreement provided for the sharing of profits between SPELI and petitioner after the principal and interest payments have been made. Respondent also points out that the remarketing and the assignment agreements gave SPELI the ability to control CATCO's possession and custody of the aircraft. Respondent finally asserts that petitioner has failed to explain: (1) Why a reasonable, prudent taxpayer would purchase with borrowed funds $26,400,000 in revenue-producing assets, the aircraft, for which the taxpayer is obligated to begin principal and interest payments in approximately 2 years yet agree to realize only $1,000 over the same period from a lease-back agreement; and (2) why the settlement agreement between SPELI, CAC, and CATCO permitted CATCO to retain $500,000 of the proceeds from the Emery settlement even though CATCO was allegedly in default. Upon examination of the pleadings, petitioner's motion for partial summary judgment and the affidavits attached thereto, and respondent's response and the affidavits attached thereto, we believe there are genuine issues of material fact critical to thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
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