United States' Motion to Exclude Expert Testimony of Plaintiffs'

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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 -
CONCLUSION OF REPORTThere are significant problems with each of the assertionson which Dubinsky rests his ultimate opinion. To acceptDubinsky's assertions one must accept Dubinsky's assessmentregarding what evidence is credible and what evidence isincredible. Even if one is willing to go this far, numerouslogical, analytical, and conceptual problems undermine nearlyall of Dubinsky's claims. Dubinsky's report does not supporthis conclusions or his ultimate opinion.Respectfully submitted,t¿-r mm____;_-/Ethan Ya L(Cl? !-iltpP' íDate- 24 -
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UNITED STATES DISTRICT COURTEASTERN
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of the transactions in order to com
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Expert ReportOfDavid A. WeisbachUni
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c.v. is attached as Exhibit A. I am
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The background for the rules allowi
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which provide a general defense aga
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2000-44 transaction. Without expres
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for the potential tender offer of S
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In particular, it is my understandi
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taxpayer wil prevail on the merits
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APPENDIX - DOCUMENTS REVIEWEDDescri
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DAVID A. WEISBACHUniversity of Chic
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143-151.Paretian Intergenerational
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APPENDIXList of Prior Expert Testim
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QUALIFICATIONSI am an Associate Pro
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dollar-US dollar exchange rate duri
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Page 37 and 38: Beal's and Montgomery's formation o
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Page 41 and 42: LOAN PREMIUM VARIATIONThe loan prem
Page 43 and 44: premium variation, but the second a
Page 45 and 46: Beal and Thomas Montgomery stated t
Page 47 and 48: was planning to acquire. Sanding al
Page 49 and 50: irelationship cannot be eva~uated i
Page 51 and 52: To summarize, Notice 2000-44 descri
Page 53 and 54: IRS and Treasury sometimes refer to
Page 55 and 56: swaps in BPB (as opposed to within
Page 57 and 58: APPENDIX AETHAN YALECurriculum Vita
Page 59 and 60: ETHAN YALEVitae, Page 3PUBLICATIONS
Page 61 and 62: APPENDIX BDescriptionBa tes NumerMa
Page 63 and 64: IRS Information Release IR 2004-64,
Page 65 and 66: PURPOSE OF REPORTThis rebuttal repo
Page 67 and 68: (BM Investments LLC, was subsequent
Page 69 and 70: espect to a potential tender offer
Page 71 and 72: premises if the "transaction" refer
Page 73 and 74: e a payoff of at least $552.5 milli
Page 75 and 76: WAS BEMONT FORMD FOR TAX REASONS? W
Page 77 and 78: (Montgomery Deposition at 516:25-51
Page 79 and 80: his case (by showing that admitting
Page 81 and 82: case. Another set of e-mail message
Page 83 and 84: made in Australian dollars, for the
Page 85: 3. failure to treat the short finan
Page 89 and 90: DescriptionDeposition of Margaret M
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United States' Motion to Exclude Expert Testimony of Plaintiffs'

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