United States' Motion to Exclude Expert Testimony of Plaintiffs'

In summary, even if Dubinsky's assertion that the swapsshould be viewed together is correct, viewing the swaps this wayis fully consistent with the swaps being a component of alegi timate, profit-seeking business transaction. ThereforeDubinsky's assertion does not support his conclusion that theswaps are an "artifice."WAS THERE PROFIT POTENTIAL?Dubinsky asserts that the swaps had no profit potential,taxes aside. (Dubinsky at 19.) It is unclear why thisassertion matters, and even assuming it does, his analysis isflawed.First, Dubinsky does not explain why the profit potentialof the swaps, standing alone, is important to his opinion. Thereal issue is not whether the swaps by themselves had profitpotential; rather, the issue is whether the overall transactionhad profit potential. Dubinsky does not discuss this.Instead, Dubinsky assumes (implicitly) that "the swaps" and"the transaction" are the same thing. But he does not explainwhy this is true. Dubinsky's assertion can be written as asyllogism: (1) a transaction lacking a non-tax profit potentialhas no economic substance; (2) the swaps lack profit potential;(3) therefore the transaction lacked economic substance. Noticethat the conclusion of the syllogism only follows from the- 7 -