Chi Wai - Page 11

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          she is entitled to the benefit of section 59(g), even in the                
          absence of the regulation permitted thereunder.  Section 59(g)              
          provides:                                                                   
                    SEC. 59(g).  Tax Benefit Rule.--The Secretary may                 
               prescribe regulations under which differently treated                  
               items shall be properly adjusted where the tax                         
               treatment giving rise to such items will not result in                 
               the reduction of the taxpayer’s regular tax for the                    
               taxable year for which the item is taken into account                  
               or for any other taxable year.                                         
               On brief, petitioner maintains that                                    
                    The “differently treated” item in the AMT system                  
               (that is, the ISO Spread that cannot be offset against                 
               capital loss, as otherwise permitted by section                        
               422(c)(2) or as occurs naturally on a sale that is not                 
               a disqualifying disposition on a decline in value of                   
               the ISO stock) is precisely the type of situation that                 
               ought to be remedied under section 59(g).  Otherwise,                  
               the imposition of AMT in this situation can produce                    
               results that are inequitable and unfair, by imposing a                 
               tax on “phantom income” that is not true economic                      
               income, and accordingly that will never be subject to                  
               tax in the regular tax system.                                         

               In the absence of the regulations that respondent is                   
          authorized, but not mandated, to promulgate under section 59(g),            
          petitioner urges us, in effect, to do so.  Petitioner cites                 
          Hillman v. IRS, 250 F.3d 228, 233 (4th Cir. 2001), revg. 114 T.C.           
          103 (2000), to support the proposition that in petitioner’s type            
          of situation an exception can be made to the literal application            
          of the statutory provision (here, the AMT) because the literal              









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