Donald G. and Beverly J. Oren - Page 36




                                       - 36 -                                         
               Furthermore, we do not believe it appropriate to engage in             
          the type of speculation petitioners would have us make.  Indeed,            
          the legislative history of section 465(b)(4) indicates that                 
          Congress intended to exclude financial difficulties from the at-            
          risk determination:                                                         
                    For purposes of * * * [section 465(b)(4)], it will                
               be assumed that a loss-protection guarantee, repurchase                
               agreement or insurance policy will be fully honored and                
               that the amounts due thereunder will be fully paid to                  
               the taxpayer.  The possibility that the party making                   
               the guarantee to the taxpayer, or that a partnership                   
               which agrees to repurchase a partner’s interest at an                  
               agreed price, will fail to carry out the agreement                     
               (because of factors such as insolvency or other                        
               financial difficulty) is not to be material unless and                 
               until the time when the taxpayer becomes                               
               unconditionally entitled to payment and, at that time,                 
               demonstrates that he cannot recover under the                          
               agreement.  [S. Rept. 94-938, at 50 n.6 (1976), 1976-3                 
               C.B. (Vol. 3) 49, 88.]                                                 
          In the Eighth Circuit, to which this case is appealable, and in             
          at least one other circuit,25 examination of “the worst-case                


               25See, e.g., Am. Principals Leasing Corp. v. United States,            
          904 F.2d 477, 483 (9th Cir. 1990):                                          
                 A theoretical possibility that the taxpayer will suffer              
                 economic loss is insufficient to avoid the applicability             
                 of this subsection.  We must be guided by economic                   
                 reality.  If at some future date the unexpected occurs and           
                 the taxpayer does suffer a loss, or a realistic                      
                 possibility develops that the taxpayer will suffer a loss,           
                 the taxpayer will at that time become at risk and be able            
                 to take the deductions for previous years that were                  
                 suspended under this subsection.  [Citations omitted.]               
          See also Thornock v. Commissioner, 94 T.C. 439, 454 (1990) (“the            
          potential bankruptcy of entities providing guarantees or loss               
          protection to investors is not a consideration in determining the           
                                                             (continued...)           





Page:  Previous  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  Next

Last modified: May 25, 2011