- 22 - 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 whetherPage: 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