William and Arlene G. Kingston - Page 22

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            method--to remove any realistic possibility that the taxpayer                             
            will suffer an economic loss if the transaction turns out to be                           
            unprofitable."  American Principals Leasing Corp. v. United                               
            States, 904 F.2d at 483.  The economic reality test was applied                           
            by this Court in Levien  v. Commissioner, 103 T.C. 120, 126                               
            (1994), affd. without published opinion 77 F.3d 497 (11th Cir.                            
            1996).                                                                                    
                  However, the Court of Appeals for the Sixth Circuit, to                             
            which an appeal in this case would lie, has disagreed with the                            
            majority of circuits and has adopted a "worst-case scenario" test                         
            for the determination of whether a taxpayer is protected from                             
            loss within the meaning of section 465(b)(4).  See Martuccio v.                           
            Commissioner, 30 F.3d 743 (6th Cir. 1994), revg. T.C. Memo. 1992-                         
            311; Emershaw v. Commissioner, 949 F.2d 841 (6th Cir. 1991),                              
            affg. T.C. Memo. 1990-246.  Under the "Golsen rule", "where the                           
            Court of Appeals to which appeal lies has already passed upon the                         
            issue before us, efficient and harmonious judicial administration                         
            calls for us to follow the decision of that court."  Golsen  v.                           
            Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th                           
            Cir. 1971).  The Court of Appeals for the Sixth Circuit has                               
            spoken definitively on the "at-risk" issue as it relates to this                          
            case.  Consequently, in the instant case, this Court is bound to                          
            apply the "worst-case scenario" standard in determining whether                           







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