- 9 -
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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