- 108 - embodying "legally distinct entitlements". Id. at 566. In rejecting the Commissioner's determination that the losses should be disallowed because they lacked economic substance, the Supreme Court noted that the Commissioner's argument on the point had consisted of one sentence in a footnote in his brief with a citation to Higgins v. Smith, supra. See Cottage Sav. Association v. Commissioner, supra at 567-568. Emphasizing that the transfers in question were made at arm's length, the Supreme Court concluded that the Commissioner's citation to Higgins v. Smith, supra, without further elaboration, was insufficient to deny the losses under section 165(a). Cottage Sav. Association v. Commissioner, supra at 568. We reject petitioner's contention that we are obliged to respect the tax consequences of the CINS transactions at issue in these cases under Cottage Sav.. In rejecting the Commissioner's economic substance argument in Cottage Sav., the Supreme Court held that the Commissioner had failed to rebut evidence that the transaction was conducted at arm's length. See Lerman v. Commissioner, 939 F.2d 44, 55-56 n.14 (3d Cir. 1991), affg. Fox v. Commissioner, T.C. Memo. 1988-570. The Supreme Court did not apply the economic substance test as fully articulated in cases such as Frank Lyon Co. v. United States, 435 U.S. at 583-584, and Horn v. Commissioner, 968 F.2d at 1237. Accordingly, Cottage Sav. Association v. Commissioner, supra, "cannot be read for thePage: Previous 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 Next
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