Saba Partnership, Brunswick Corporation, Tax Matters Partnership - Page 19




                                       - 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 the             






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