- 245 - there was a mutual understanding between Mr. Kersting and his program participants that primary and leverage loans would not be enforced. Judge Goffe rejected the collection litigation evidence as a basis for sustaining the validity of the Kersting loans as follows: As illustrated by Kersting's pay-or-else letter to over 30 clients on September 25, 1980, and his 1986 correspondence with the Thompsons, his overriding concern was to be compensated by means of leverage loan interest. It was this amount that even he often referred to as a "fee" or a deductible "cost" of tax deductions. In encouraging clients by means of the September 25, 1980, letter to "discharge the debt to which you are a party," he sought only small amounts that could not have represented typical primary or leverage loans. His letters to the Thompsons indicate that he only threatened or pursued collection of principal obligations when the investor neglected or refused to pay leverage loan interest. This rare occurrence, which Kersting did not testify he either intended or expected, is not sufficient to transform any of petitioners' loans from Kersting corporations into genuine recourse indebtedness. Id. at 1506, 1991 T.C.M. (RIA), at 91-3049 to 91-3050. 5. CAT-FIT Plan Judge Goffe found that the record in the trial of the test cases did not provide a basis for the Court to understand fully how the CAT-FIT program operated or how Mr. Kersting intended the program to operate.105 In any event, Judge Goffe concluded that: (1) The CAT-FIT program was a sham transaction that provided no economic benefit other than the creation of tax losses; (2) the 105 The test case petitioners who participated in the CAT- FIT program included the Dixons, DuFresnes, Owenses, and Hongsermeiers. See Dixon II, 62 T.C.M. (CCH) at 1507, 1991 T.C.M. (RIA), at 91-3050 to 91-3051.Page: Previous 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 Next
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