Donald G. and Beverly J. Oren - Page 32




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          argue that the sale-leaseback cases are distinguishable from the            
          circular payment scenario in this case, because:  (1) The sale-             
          leaseback cases involved “identical and offsetting obligations of           
          the loan and rental payments” whereas no rental payments are                
          involved in this case; and (2) the sale-leaseback cases generally           
          involved depreciation deductions whereas, in this case, Mr. Oren            
          did not claim any such deductions.  However, the facts in this              
          case are decidedly similar to those involved in the typical sale-           
          leaseback scenario.  We cannot distinguish, for purposes of                 
          section 465(b)(4), the circular arrangements found in Moser v.              
          Commissioner, supra; Am. Principals Leasing Corp. v. United                 
          States, supra; Levien v. Commissioner, supra; etc., from the                
          circular arrangement found in this case.  Accordingly, we find              
          that the any realistic possibility standard is applicable.                  
               Petitioners argue that, in any event, there was a realistic            
          possibility that the circular chain of loan and interest payments           
          would be broken and that Mr. Oren would be forced to repay the              
          loans from Dart without collecting on the loans he made to HL and           
          HS.  Respondent claims that petitioners are simply hypothesizing            
          about scenarios that might occur, none of which were likely to              
          occur given the peculiar set of facts in this case including the            
          circularity of payments, Mr. Oren’s unlimited control over the              
          companies, and the 375-day payment following demand provision in            
          the notes.  Respondent also argues that hypothetical events that            






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