Harbor Bancorp & Subsidiaries - Page 43

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          issue.  Petitioners may be, as they allege, the first bondholders           
          to be taxed upon interest received from purportedly tax-exempt              
          bonds that fail to meet the requirements for tax exemption.                 
          However, that does not mean that they have been targets of                  
          impermissible discrimination.21                                             
               Finally, we realize that under our holding, it is the                  
          bondholders, rather than the bond issuer, that bear the immediate           
          brunt of the issuer's failure to pay the amount required by                 
          section 148(f)(2).  However, the statutory exemption from Federal           
          tax for interest on State and local government bonds is                     
          conditioned on the requirement that the bond issuer pay the                 
          amount required by section 148(f)(2), and exclusions from taxable           
          income are to be narrowly construed.  Commissioner v. Schleier,             

               21Petitioners rely on International Business Machines Corp.            
          v. United States, 170 Ct. Cl. 357, 343 F.2d 914 (1965), to                  
          support their claim of discrimination.  In that case, one of                
          IBM's competitors had obtained a ruling from the Commissioner               
          that certain equipment was exempt from an excise tax.  IBM sought           
          a similar ruling for similar equipment, which the Commissioner              
          finally denied 2 years later.  At the time of the denial, the               
          Commissioner prospectively revoked the favorable ruling that                
          IBM's competitor had received, but the competitor had already               
          enjoyed several years of favorable tax treatment.  The Court of             
          Claims found that this course of conduct constituted "manifest              
          and unjustifiable discrimination", and its effect "was to favor             
          the other competitor so sharply that fairness called upon the               
          Commissioner, if he could under Section 7805(b), to establish a             
          greater measure of equality."  343 F.2d at 923.                             
               We find that the present case is distinguishable from IBM.             
          The present case does not involve a determination by the                    
          Commissioner, which has the effect of penalizing petitioners and            
          favoring similarly situated taxpayers so as to give them a                  
          significant competitive or financial advantage.                             





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