- 13 -
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.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011