- 10 - stop loss agreements, or other similar arrangements. See sec. 465(b)(4). Petitioners contend that we should analyze the facts of the instant case under the "worst case scenario" test articulated in Emershaw v. Commissioner, 949 F.2d 841 (6th Cir. 1991), affg. T.C. Memo. 1990-246, rather than the "economic reality" test used by this Court and the vast majority of circuit courts that have considered the issue. See Levien v. Commissioner, 103 T.C. 120, 126-129 (1994), affd. without published opinion 77 F.3d 497 (11th Cir. 1996). To date, the Court of Appeals for the Third Circuit, the venue for any appeal of the instant case, has yet to adopt either test.8 Petitioners contend, however, that, based upon Nicholson v. Commissioner, 60 F.3d 1020 (3d Cir. 1995), revg. T.C. Memo. 1994-280, this Court should analyze the instant case under the "worst case scenario" standard. We disagree. Nicholson involved an appeal of this Court's refusal to award a taxpayer attorney's fees under section 7430. See Nicholson, supra at 1024. The Commissioner initially contended that the taxpayer was not at risk with respect to a long-term note used to finance a computer purchase and leaseback transaction. See id. at 1023. In particular, the Commissioner argued that the form of the taxpayer's transaction constituted a 8 See Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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