Hospital Corporation of America and Subsidiaries - Page 52

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               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).                                                                      




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