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from the LIBOR notes would be offset by losses from the
concomitant swap transactions.” Id. The Court of Appeals also
concluded that “any risks inherent in ABN’s investment were de
minimis” because “The PPNs were essentially risk free”, “any loss
on the PPNs would be embedded in the value of the LIBOR notes”,
and ABN “succeeded in hedging all but a de minimis amount of the
risk associated with the LIBOR notes.” Id. at 514-515.
We note that after the instant cases were remanded to the
Court, the Court of Appeals issued its opinion in Boca
Investerings Pship. v. United States, 314 F.3d 625, ___ (D.C.
Cir. 2003), revg. 167 F. Supp. 2d 298 (D.D.C. 2001), citing ASA
Investerings Pship. v. Commissioner, supra, in support of its
holding that another Merrill Lynch-designed partnership would not
be recognized as a valid entity for Federal tax purposes because
it was not organized for a nontax business purpose.
Petitioner contends that Saba and Otrabanda are
distinguishable from ASA Investerings Partnership in that (1)
Brunswick did not promise a guaranteed or specified return to
ABN, and (2) the partners agreed to share partnership expenses
and losses. Petitioner made these same claims in arguing its
case before the Court of Appeals. Saba II, 273 F.3d at 1140-
1141. The Court of Appeals expressed skepticism that petitioner
could demonstrate “significant differences” between the actions
of Brunswick in these cases and those of AlliedSignal in ASA
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