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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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