Indeck Energy Services, Inc., and Subsidiaries - Page 21




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          the settlement payment it paid.  In the Polskys’ notice,                    
          respondent determined that $4,856,922 of the $19,866,922                    
          settlement payment reported in the Polskys’ 1994 return as long-            
          term capital gain was instead interest income.  In both notices,            
          respondent determined that the section 6662 accuracy-related                
          penalty was applicable with respect to the taxable years ended in           
          1994.                                                                       
                                       OPINION                                        
               Indeck argues that the $19,886,922 settlement payment                  
          consisted of a $15,030,000 purchase price for Mr. Polsky’s 30               
          Indeck shares and $4,856,922 in deductible interest, because both           
          the parties’ intent and the substance of the Settlement Agreement           
          contemplated the payment of $4,856,922 as interest to compensate            
          Mr. Polsky for the delay in receiving $15,030,000 for his shares            
          after January 31, 1991.  Indeck further contends that the Polskys           
          are estopped from denying that the $19,886,922 settlement payment           
          includes interest under the doctrine of judicial estoppel.  The             
          Polskys contend that the entire $19,886,922 settlement payment              
          constitutes the purchase price for the shares, based on the                 
          express allocation of the entire amount to purchase price in the            
          parties’ written agreement, and the absence of any “indebtedness”           

               7(...continued)                                                        
          Polskys recharacterized $4,856,922 of long-term capital gain as             
          interest income.  Since the latter figure is the appropriate                
          rounding of the actual $4,856,921.85 in dispute, we use the                 
          latter figure throughout this opinion.                                      





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