Douglas A. and Janet Vander Heide - Page 15

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          for purposes of section 465(b)(2).  Melvin v. Commissioner, 88              
          T.C. 63, 73 (1987), affd. 894 F.2d 1072 (9th Cir. 1990).  Thus,             
          we cannot simultaneously propose a rule that the deferral of debt           
          obligations into the future represents per se an “other similar             
          arrangement” for section 465(b)(4).  The presence of deferral               
          provisions, however, is another factor to be considered in                  
          deciding whether a taxpayer is protected against loss.  See                 
          Santulli v. Commissioner, T.C. Memo. 1995-458.                              
               The instant transaction is similar to the equipment leasing            
          transaction in Hayes v. Commissioner, T.C. Memo. 1995-151.  Hayes           
          involved sale-leaseback transactions by and between the Hambrose            
          Leasing-5 Partnership, Charterhouse, and Hambrose Reserve.  As in           
          the instant case, Hayes involved circularity of payments and that           
          partnership's deferral provisions.  Applying the realistic                  
          probability test in Hayes, we held that the taxpayers were not at           
          risk under section 465(b)(4).  We stated the following:                     
               Moreover, there were co-extensive provisions for                       
               delaying the rental payments and the payment of the                    
               purchase price installments for the years 1987 through                 
               1990.  Furthermore, the responsibility of M & J, as the                
               general partner of Charterhouse, for the rent payments                 
               provided an important assurance that the rents, which                  
               would be the source of the payments by the partnership                 
               to Hambrose Reserve, would be paid.  Id.                               
               The ultimate decision whether the taxpayer is protected                
          against loss “rests upon the substance of the transactions in               
          light of all the facts and circumstances.”  Wag-A-Bag, Inc. v.              
          Commissioner, T.C. Memo. 1992-581.                                          




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