Seagate Technology, Inc., Successor in Interest to Seagate Peripherals, Inc., f.k.a. Conner Peripherals, Inc.. - Page 13




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          operative facts of a case), courts may rely on the expert’s                 
          affidavits in denying motions for summary judgment.  See Cabrales           
          v. County of Los Angeles, 864 F.2d 1454, 1460 (9th Cir. 1988),              
          vacated and remanded 490 U.S. 1087 (1989); see also Newhouse                
          Broad. Corp. v. Commissioner, T.C. Memo. 2000-270.                          
               As explained above, under the regulations, respondent is not           
          required to present an actual example of an arm’s-length                    
          transaction where the costs of employee stock options were                  
          shared.6  Petitioner, if it follows its present approach, will              
          try to show that such costs are not shared by proving a negative;           
          i.e., no transactions where there was cost sharing.  Respondent,            
          on the other hand, if he follows his present approach, will                 
          attempt to show by means of expert opinion that such costs would            
          or should be shared within the meaning of the regulations.                  
          Obviously, an expert’s opinion and/or testimony is generally not            
          admissible as fact because he or she generally renders opinions             
          after the fact.  Nevertheless, experts’ opinions are received for           
          the purpose of assisting the trier of fact in reaching a factual            
          conclusion.                                                                 
               Our conclusion that there remains a genuine dispute about a            
          material fact does not presume that respondent’s expert(s) is               
          qualified or that the opinion(s) is necessarily helpful or                  


               6 We note, however, that such a showing would be preferred             
          to opinion evidence.                                                        






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