Homer N. Cummings - Page 9

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          requiring a factual determination at the partner level.                     
          Accordingly, petitioner's reliance on Maxwell v. Commissioner is            
          misplaced.                                                                  
               Likewise, Harris v. Commissioner, supra, and Durrett v.                
          Commissioner, supra, are not dispositive of the issue presented.            
          In short, Harris v. Commissioner stands for the proposition that,           
          in submitting computations for entry of decision pursuant to Rule           
          155 in a non-TEFRA proceeding, a taxpayer may include in the                
          taxpayer's computations, NOL carrybacks arising from the                    
          settlement of TEFRA partnership proceedings relating to a later             
          taxable year when the Commissioner does not otherwise challenge             
          the amount of the claimed carryback.2  Notably, although Harris             
          v. Commissioner, supra at 125, includes a citation to Maxwell v.            
          Commissioner for the proposition that an NOL carryback is an                
          affected item, and although we referred to the NOL carryback in             
          question as a computational adjustment, Harris v. Commissioner,             
          supra at 127, we were not required to (and again did not)                   
          definitively decide the proper characterization of the affected             
          item.                                                                       



          2    Although we permitted the taxpayer in Harris v.                        
          Commissioner, 99 T.C. 121, 127-128 (1992), to include in his Rule           
          155 computation the NOL carryback arising from the settlement of            
          TEFRA partnership proceedings, we declined to extend this ruling            
          to potential carrybacks relating to separate TEFRA partnership              
          proceedings that had not at the time been finally settled or                
          otherwise decided at the partnership level.                                 




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