Homer N. Cummings - Page 10

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               Durrett v. Commissioner, supra, concerned the taxpayers'               
          request for leave to amend their petition on the eve of trial to            
          claim an ITC carryback from 1983 to 1980, the latter being one of           
          the taxable years in issue.  The ITC carryback purportedly                  
          reflected the taxpayers' distributive share of a credit claimed             
          by a TEFRA partnership whose return respondent did not challenge            
          and for which the period of limitations under section 6229 had              
          expired.  The taxpayers reasoned that they should be granted                
          leave to amend their petition as a matter of course because, in             
          their view, the ITC carryback amounted to nothing more than a               
          computational adjustment.  To the contrary, we held that, where             
          the question of the validity of the ITC had not been reviewed in            
          the context of a TEFRA partnership proceeding, the matter of the            
          taxpayers' entitlement to the disputed ITC carryback could only             
          be resolved after consideration of both the bona fides of the               
          credit itself and the taxpayers' correct tax liability for 1983.            
          We then denied the taxpayers' motion for leave to amend on the              
          ground that to grant the motion on the eve of trial would unduly            
          prejudice the Commissioner.                                                 
               Petitioner's reliance on Durrett v. Commissioner, supra, is            
          misplaced because we were not required to (and did not) decide in           
          that case whether the ITC carryback was an affected item subject            
          to a computational adjustment or an affected item requiring a               
          factual determination at the partner level.  Rather, we merely              






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