I.C. Hemmings and Sue B. Hemmings, et al. - Page 18

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          we conclude that the ACLI and ELMS transactions in this case were           
          not bona fide, and that the primary motive for entering into the            
          transactions was not for economic profit but rather for tax                 
          purposes.  As such, the transactions had no basis in fact or law            
          and fall within the ambit of being grossly erroneous items.                 
               In reaching this conclusion, we recognize that in Stoller v.           
          Commissioner, T.C. Memo. 1990-659, affd. in part and revd. in               
          part 994 F.2d 855 (D.C. Cir. 1993), supplemented 3 F.3d 1576                
          (D.C. Cir. 1993), the Court recognized certain straddle                     
          transactions wherein some of the same considerations or gremlins            
          were present.  It is important to note, however, that                       
          respondent's expert in that case conceded that the transactions             
          were bona fide.  Mrs. Hemmings has made no such concession.8                
               Respondent also argues that this case is controlled by Russo           
          v. Commissioner, 98 T.C. 28 (1992).  In Russo, this Court denied            
          petitioner/wife's motion to amend the petition to raise the                 
          section 6013(e) innocent spouse defense.  The deficiency resulted           

          transactions.  To a great extent we agree.  But, we have not                
          based our conclusion on Mr. Aughtry's testimony, rather we focus            
          on the facts concerning the transactions testified to by Messrs.            
          Hemmings and Harris.  These testimonies are not controverted.               
          8   Respondent contends that since Mr. and Mrs. Hemmings                    
          were allowed deductions for some of the ACLI and ELMS                       
          transactions in the settlement, the transactions must have had              
          substance.  We do not know the considerations that brought forth            
          the settlement agreement.  But, to a certain extent in complex              
          and multi-issue cases such as these, there is a certain amount of           
          "horse trading" that may produce peculiar results.  This is                 
          particularly true where the ACLI and ELMS transactions are not              
          the only issues.                                                            




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