- 21 - however, that petitioner was not at risk for his pro rata share of the Limited Recourse Note as to which he assumed personal liability because of section 465(b)(4). Section 465(b)(4) provides: (4) Exception.--Notwithstanding any other provision of this section, a taxpayer shall not be considered at risk with respect to amounts protected against loss through nonrecourse financing, guarantees, stop loss agreements, or other similar arrangements. Respondent does not contend that petitioner was protected from loss by guarantees or stop loss agreements. However, respondent argues that petitioner was protected from loss by nonrecourse financing and "other similar arrangements", as provided in section 465(b)(4). In determining whether a taxpayer is protected from loss within the meaning of section 465(b)(4), the majority of Courts of Appeals that have addressed this issue have applied the "realistic possibility" or "economic reality" test. See Waters v. Commissioner, 978 F.2d 1310 (2d Cir. 1992), affg. T.C. Memo. 1991-462; Young v. Commissioner, 926 F.2d 1083 (11th Cir. 1991), affg. T.C. Memo. 1988-440 and Cohen v. Commissioner, T.C. Memo. 1988-525; Moser v. Commissioner, 914 F.2d 1040 (8th Cir. 1990), affg. T.C. Memo. 1989-142; American Principals Leasing Corp. v. United States, 904 F.2d 477 (9th Cir. 1990) (sometimes cited as Baldwin v. United States). Under the economic reality test, the courts examine whether "a transaction is structured--by whateverPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
Last modified: May 25, 2011