United States' Motion to Exclude Expert Testimony of Plaintiffs'

statements that Notice 200q-44 transaction are "solely" taxmotivated leaves no doubt t!hat the IRS and Treasury view the,absence of any non-tax mot~vation for undertaking a transactionas a sine qua non of a Not~ce 2000-44 transaction.The aspects of the BPS Transactions that makes them mostsimilar to the offsetting 9ptions variation of the transactionsdescribed in Notice 2000-4~ -- BPB's execution of the long andshort swaps, and contribut~on of those swaps to Bemont -- wereinot, according to the prinqipals, "undertaken solely to createtax benefits." Neither we~e they "designed (or) marketed" forthat purpose. In their denosi tion testimony, both Daniel A.Beal and Thomas Montgomery Iclaimed legitimate non-tax reasonsfor executing the swaps an9 contributing the swaps to Bemont.,Both stated that the transactions were done to hedge currencyrisk associated with a pot~ntial investment in or tender offerfor Solution 6. Assuming ~he principals had a non-tax businesspurpose for executing the swaps and contributing them to Bemont,any claim that the BPB Traqsactions are substantially similar tothe transactions described in Notice 2000-44 would flatlycontradict the longstanding position of IRS and Treasury.Following are illustr4tive examples of the instances wherethe IRS and Treasury have 4escribed a sole or principalmotivation to create tax banefi ts as a defini ti ve characteristicof the transactions described in Notice 2000-44.(Note that the- 23 -