¶1dissenting: I respectfully dissent.
¶2As its reason for failing to give recognition to the allocation herein, the majority has concluded such allocation lacked “economic substance.” This conclusion was grounded on the fact that the proceeds of the joint venture, with “one minor exception” totaling $150,000, were to be shared equally between petitioner and his coventurer. By focusing its attention on the ultimate distribution of the proceeds from the venture, the majority has essentially applied the “substantial economic effect” test embodied in the regulations under section 704(b)(2). Orrisch v. Commissioner, 55 T.C. 395 (1970), affd. per curiam in an unpublished opinion (9th Cir. 1973); sec. 1.704-1(b)(2), Income Tax Regs. In view of respondent’s concession that section 704(b)(2) has no application to bottom-line allocations, I agree with Judge Tannenwald and believe the majority has used the improper standard to serve as the basis for its decision. Specifically, I think the relevant inquiry in this case should be whether the allocation served any bona fide business purpose apart from the resultant savings in taxes. To be sure, the end result of the allocation of the losses to petitioner was intended to reduce his taxes, however, I submit that if such allocation was negotiated at arm’s-length, and agreed upon for the purpose of compensating petitioner for his knowledge and experience in obtaining the financing for the joint venture, it should be respected. In this connection, I recognize the facts as set forth in the majority's opinion do not expressly state the purpose for making the special allocation of losses to petitioner,
¶3To begin with, it is clear that Babcock was in need of someone with petitioner’s expertise to successfully carry out the construction of the Kings Creek Apartments. It is also apparent that Babcock used the tax advantage of the losses in the project’s early years as an inducement to petitioner for his joining the venture. The mere fact that the inducement was in the form of reduced taxes, in my opinion, does not alter the conclusion that it served a valid business purpose. That being the case, I would honor the allocation. See Lyon Co. v. United States, 435 U.S. 561, 580 (1978); Van Raden v. Commissioner, 71 T.C. 1083 (1979).
¶4The majority, as support for its use of the economic effect test, relies heavily on Kresser v. Commissioner, 54 T.C. 1621 (1970). I submit this reliance is misplaced. In that case, to take full advantage of an expiring net operating loss carryover, the partners of two partnerships agreed to allocate all the income from both partnerships for 1 year to a single partner. It was also agreed in later years the income so allocated would be fully restored to the other partners. In refusing to give effect to the purported reallocation, we in essence found the reallocation to be nothing more than a sham. In other words, the only apparent motivation for the reallocation was to secure a savings in taxes, and, unlike the present case, it appeared to serve no other purpose or have any other significant effect. For this reason, I believe the case to be clearly distinguishable. .
¶5 Sec. IV(A) of the joint venture agreement as set forth in the findings of fact states that the losses were to be allocated to petitioner because the adjusted basis of the property contributed by Babcock to the joint venture “differs substantially from the fair market value of said property at the time of its contribution.” This statement, however, was stricken when the agreement was subsequently amended on Apr. 15, 1971.