United States' Motion to Exclude Expert Testimony of Plaintiffs'

The Service nevertheless concludes that, despite thesecommon aspects, the Distressed Asset/Debt Tax Sheltertransactions are not substantially similar to Notice 2000-44.(Id. ) Indeed, some variations of the transaction described inthis coordinated issue paper involved large tax losses on thedisposi tion of a partnership interest, the first item inDubinsky's list. Thus even if that aspect were present inBeal's transaction -- it is not -- the criteria cited byDubinsky would still be insufficient to support his"substantially similar" conclusion.As discussed at greater length in my original report, theIRS and Treasury have consistently maintained that it takessomething more that the factors cited by Dubinsky for atransaction to be classified as the same as or substantiallysimilar to a Notice 2000-44 transaction.It requires that thetaxpayer's purpose in undertaking the transaction be "solely tocreate tax benefits." See Announcement 2004-46, 2004-1 C.B. 964(May 24, 2004). See also pages 22-26 of my original report. Inaddi tion, the taxpayer's net economic outlay must be "nominal orzero" which is not the case in Beal' s transaction. See pages16-22 of my original report. Neither of these factors arepresent in the transaction at issue in this case.- 23 -