Saba Partnership, Brunswick Corporation, Tax Matters Partnership - Page 122




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         income tax purposes for lack of economic substance.  Petitioner              
         bears the burden of proof.  See Rule 142(a); Brown v.                        
         Commissioner, 85 T.C. 968, 998 (1985), affd. sub nom. Sochin v.              
         Commissioner, 843 F.2d 351 (9th Cir. 1988).                                  
              As discussed in detail below, we shall sustain respondent's             
         adjustments on the ground that the disputed CINS transactions                
         lack economic substance.  See ACM Partnership v. Commissioner,               
         157 F.3d 231 (3d Cir. 1998), affg. in part and revg. in part T.C.            
         Memo. 1997-115, where the Court of Appeals for the Third Circuit             
         affirmed this Court’s holding that virtually identical CINS                  
         transactions arranged by Merrill Lynch lacked economic substance.            
         Based upon our holding in these cases, we need not decide whether            
         Saba and Otrabanda were valid partnerships.  Cf. ASA Investerings            
         Partnership v. Commissioner, T.C. Memo. 1998-305, on appeal to               
         the Court of Appeals for the District of Columbia Circuit.                   
         I.  Evidentiary Matters                                                      
              Prior to trial, petitioner asserted that certain documents              
         in its possession, including the Zelisko memorandum, were                    
         privileged and not subject to discovery.  After respondent moved             
         to compel production of the documents, the Court ordered                     
         petitioner to submit the documents to the Court for in camera                
         review.  On August 14, 1998, the Court issued an order holding,              
         among other things, that only limited portions of the Zelisko                








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