- 18 - 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.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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