Robert L. Whitmire - Page 16

                                        - 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 financial                           




Page:  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