- 16 - In American Principals Leasing Corp. v. United States, 904 F.2d 477 (9th Cir. 1990), it was stated with regard to section 465(b)(4), as follows: the purpose of subsection 465(b)(4) is to suspend at risk treatment where a transaction is structured--by whatever method--to remove any realistic possibility that the taxpayer will suffer an economic loss if the transaction turns out to be unprofitable. A theoretical possibility that the taxpayer will suffer economic loss is insufficient to avoid the applicability of this subsection. We must be guided by economic reality. If at some future date the unexpected occurs and the taxpayer does suffer a loss, or a realistic possibility develops that the taxpayer will suffer a loss, the taxpayer will at that time become at risk and be able to take the deductions for previous years that were suspended under this subsection. [Id. at 483; citations omitted.] The potential bankruptcy or insolvency of entities providing guaranties or loss protection to investors is not considered in applying section 465(b)(4) unless it creates a realistic possibility of economic loss. Thornock v. Commissioner, 94 T.C. 439, 454 (1990); Capek v. Commissioner, 86 T.C. 14, 52 (1986). In this regard, the report from the Senate Finance Committee with respect to section 465 states as follows: For purposes of this rule [i.e. section 465(b)(4)], it will be assumed that a loss-protection guarantee, repurchase agreement or insurance policy will be fully honored and that the amounts due thereunder will be fully paid to the taxpayer. The possibility that the party making the guarantee to the taxpayer, or that a partnership which agrees to repurchase a partner’s interest at an agreed price, will fail to carry out the agreement (because of factors such as insolvency or other financialPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011