Michael W. and Charlotte S. Phillips - Page 5

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          prospective settlement of the partnership proceedings, pursuant             
          to which the business energy investment credit would be                     
          disallowed for 1985, while a regular investment credit would be             
          allowed for 1985 and then subject to recapture in 1986.                     
          Consistent with this settlement, respondent determined                      
          petitioners’ share of the investment credit for 1985 to be                  
          $114,000 and their recapture liability for 1986 to be $63,270.              
          The settlement with Ethanol was finalized and decision was                  
          entered by this Court on May 19, 1994.                                      
                                     Discussion                                       
               This opinion is concerned only with the regular investment             
          credit claimed by petitioners, which respondent for the most part           
          allowed.  The business energy investment credit which petitioners           
          also claimed and which respondent disallowed is not at issue and            
          may be disregarded.  Petitioners’ main argument may be summarized           
          as follows.  There can be no liability for recapture of an                  
          investment credit that was not used.  Use of an allowable                   
          investment credit is optional.  Although petitioners originally             
          claimed an investment credit on partnership section 38 property             
          for the 1985 taxable year, they subsequently filed an amended               
          return deleting the credit.  By assessing the additional tax                
          shown on the amended return, respondent allowed them to revoke              
          their original claim.  This left them in the same position as if            
          they had never claimed the credit.3  Accordingly, when in 1986              

          3 Petitioners conveniently overlook the fact that when they                 
          recalculated their tax liability on the amended return for 1986,            
          they neglected to delete the investment credit carryover that               
                                                             (continued...)           



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