James M. Rankin and Shirley Rankin - Page 14

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          tax benefit rule, respondent has not raised a new matter for                
          which respondent bears the burden of proof.  Colonnade                      
          Condominium, Inc. v. Commissioner, 91 T.C. 793, 795 n.3 (1988).             
          We accordingly reject petitioners’ attempt to limit our                     
          consideration of the applicability of the tax benefit rule in the           
          instant case.                                                               
               We do not find merit in petitioner’s reliance on Schuster’s            
          Express, Inc. v. Commissioner, supra.  In Schuster’s Express the            
          taxpayer maintained insurance expense accounts on the basis of a            
          predetermined percentage of gross receipts and deducted the                 
          amount so computed even though its actual insurance expense was             
          less than the estimated amount.  The difference between the                 
          estimated and actual expense was credited to a reserve account.             
          The Commissioner disallowed the deductions claimed for the                  
          amounts credited to the reserve account in the taxpayer’s open              
          years and sought, pursuant to section 481(a), to include in the             
          taxpayer’s income for the earliest open year the balance of the             
          reserve account as of the end of the preceding year, which                  
          comprised additions made in closed years.6  The Court found that            
          the applicability of section 481(a) constituted a new matter for            
          which the Commissioner bore the burden of proof, stating:                   
               [the Commissioner], the party on whom the burden of                    
               proof rests, has not established that under * * * [the                 

          6    Sec. 481(a) permits the making of an adjustment with respect           
          to amounts that were omitted in closed years.  Graff Chevrolet              
          Co. v. Campbell, 343 F.2d 568, 571-572 (5th Cir. 1965).                     




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