Grant K. Hagestad - Page 10

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          dealing with an item of income.  However, both deductions and               
          omissions affect the determination of taxable income.                       
          Consequently, we think that any distinction based on a "same                
          item" argument is a distinction without a difference.  In short,            
          we are satisfied that the second element enunciated in Fruit of             
          the Loom, Inc. v. Commissioner, supra, has been satisfied.                  
               Finally, we turn to the third and fourth elements enunciated           
          in Fruit of the Loom test.  These elements require that there be            
          a double deduction, section 1312(2), and that petitioner have               
          maintained inconsistent positions with respect to the deduction,            
          section 1311(b).  That is, the carryforward of a portion of the             
          CLD to 1991 must be inconsistent with the "treatment accorded"              
          that portion in 1987.  Sec. 1.1311(b)-1(a), Income Tax Regs.                
          Since it is clear that a portion of the CLD was allowed in 1991             
          by the 1995 refund, we would have to find that that portion of              
          the deduction had also been allowed in 1987 for the mitigation              
          provisions to apply.  Thus, the decision in this case turns on              
          what exactly was the "treatment accorded" the deduction in 1987--           
          was it allowed or not?                                                      
               If it was allowed, this would be the "erroneous treatment"             
          needed to invoke the mitigation provisions, the determination               
          would reflect a case of double deduction, one of the enumerated             
          circumstances of adjustment, section 1312(2), and the facts of              
          this case would fit squarely under the prohibition against double           





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