- 52 - Distinguishing the cases relied on by the Commissioner,12 the Court of Appeals stated further that the undercapitalization of the captive insurer or the presence of an indemnification agreement running from the parent to the captive insurer "alone provided a sufficient basis from which to find no risk shifting and to decide the cases in favor of the Commissioner." Humana v. Commissioner, 881 F.2d at 254 n.2. The Court of Appeals also stated: In general, absent specific congressional intent to the contrary, as is the situation in this case, a court cannot disregard a transaction in the name of economic reality and substance over form absent a finding of sham or lack of business purpose under the relevant tax statute. [Id. at 255; citations omitted.] The court noted that we had found that Humana had a valid business purpose for incorporating the captive insurer. Id. The court found both risk sharing and risk distribution involved in the transactions between the Humana subsidiaries and HCI. Id. Risk distribution was involved because losses were spread among a number of Humana's subsidiaries. Id. at 257. In Malone & Hyde, Inc. v. Commissioner, T.C. Memo. 1989-604, supplemented by T.C. Memo. 1993-585, the taxpayer parent, primarily a wholesale food distributor, together with 12 Those cases were: Beech Aircraft Corp. v. United States, 797 F.2d 920 (10th Cir. 1986); Stearns-Roger Corp. v. United States, 774 F.2d 414 (10 Cir. 1985); Carnation Co. v. Commissioner, 71 T.C. 400 (1978), affd. 640 F.2d 1010 (9th Cir. 1981).Page: Previous 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 Next
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