Hospital Corporation of America and Subsidiaries - Page 57

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               cannot be blind to the realities of the case.  The                     
               "interdependent" separate agreements, when considered                  
               together indicate an arrangement under which there was no              
               risk shifting.  Under the hold harmless agreement, the                 
               ultimate risk for workers' compensation, auto liability, and           
               general liability remained with Malone & Hyde.  This being             
               so, the transactions did not result in Malone & Hyde or the            
               subsidiaries receiving "insurance" from Eastland within the            
               meaning of that term under the Internal Revenue Code.                  
               [Malone & Hyde, Inc. v. Commissioner, 62 F.3d at 842-843;              
               citations omitted; emphasis added.]                                    
               We turn next to our consideration of the facts present in              
          the instant case in light of the holdings of the Sixth Circuit              
          Court of Appeals in Humana and Malone & Hyde, Inc..  Golsen v.              
          Commissioner, 54 T.C. 742 (1970).  In the instant case,                     
          respondent concedes that the professional and general liability             
          risks and workers' compensation risks covered by Parthenon are              
          insurable risks. Furthermore, respondent does not dispute the               
          presence of risk distribution in the instant case, inasmuch as              
          the number of hospitals insured and the number of hospital beds             
          involved in the instant case far exceed the number of hospitals             
          and beds insured that the Court of Appeals in Humana found                  
          sufficient for risk distribution to have occurred.  Humana Inc.             
          v. Commissioner, 881 F.2d at 256-257.  Accordingly, the questions           
          we must resolve are (1) whether bona fide insurance transactions            
          exist and, (2) if they do, whether the sister subsidiaries                  
          shifted those risks to Parthenon.                                           








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