Salina Partnership LP - Page 49




                                       - 49 -                                         
          indebtedness within the meaning of the statute, stating in                  
          pertinent part that “although an indebtedness is an obligation, an          
          obligation is not necessarily an ‘indebtedness’”.   Id. at 497.             
          Nevertheless, the Supreme Court’s rejection of the taxpayer’s               
          argument was more firmly rooted in the Court’s holding that the             
          disputed payments did not constitute  a payment of interest within          
          the meaning of the statute.  See Deputy v. du Pont, supra at 498.           
               Petitioner’s interpretation of Deputy v. du Pont, supra, for           
          the proposition that “Salina’s short sale obligation” is “not an            
          ‘indebtedness’ that constitutes a ‘liability’ under Section 752 of          
          the Code”, overstates the Supreme Court’s holding in that case.  In         
          the first instance, the Supreme Court’s statement in Deputy v. du           
          Pont, supra at 497, that “an obligation is not necessarily an               
          ‘indebtedness’”, which was directed at the taxpayer’s obligation to         
          transfer an amount equivalent to the dividends paid on the borrowed         
          securities to the lender, does not constitute a blanket holding             
          that a borrower’s obligation to close a short sale by returning the         
          borrowed securities to the lender will never be considered an               
          indebtedness.  Moreover, petitioner attempts to equate the term             
          “indebtedness”, as contemplated under section 23(b) of the Internal         
          Revenue Code of 1928, with the term “liabilities” as used in                
          section 752, without any meaningful analysis or citation to                 
          precedent.  We, of course, are in no way constrained (nor prepared)         








Page:  Previous  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  Next

Last modified: May 25, 2011