Donald G. and Beverly J. Oren - Page 30




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          S corporations.  Respondent determined that the loans from Mr.              
          Oren to HL and HS were part of a loss-limiting arrangement under            
          section 465(b)(4), and, therefore, Mr. Oren was not at risk for             
          those amounts.21  Respondent argues that where loan transactions            
          are structured so as to remove “any realistic possibility” of               
          economic loss, taxpayers are not at risk for those amounts.                 
          Petitioners contend that the existence of circular payments is              
          not per se a loss-limiting arrangement.  They argue that the                
          notes from Mr. Oren to Dart were fully recourse, and Mr. Oren’s             
          obligation to repay the loans was absolute even if HL or HS                 
          failed to repay.                                                            
               Generally, a taxpayer is at risk in an activity to the                 
          extent of money contributed or amounts borrowed for use in the              
          activity.  Sec. 465(b)(1).  A taxpayer is at risk with respect to           
          borrowed amounts if he or she is personally liable for repayment            
          of the loans or, otherwise, if he or she has pledged property as            
          security for loan repayment.  Sec. 465(b)(2).  However, a                   
          taxpayer is not at risk, even for amounts received in a fully               
          recourse loan, if he or she is protected by a loss limiting                 
          arrangement.  Sec. 465(b)(4).  Section 465(b)(4) provides:                  
          “Exception.--Notwithstanding any other provision of this section,           


               21HL and HS were both involved in the leasing of equipment;            
          HL leased trailers and HS leased tractors.  Respondent argues,              
          and petitioners do not dispute, that equipment leasing is an                
          activity which is subject to the at risk provisions.  See sec.              
          465(c)(1)(C).                                                               





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