James E. Redlark and Cheryl L. Redlark - Page 11

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          interest is a deductible business expense under section 162 and             
          therefore under section 62(a)(1).  See Brennan & Megaard,                   
          "Deducting Interest on Noncorporate Trade or Business Tax                   
          Deficiencies: Uncertainty Exists Under the New Temporary                    
          Regulations," 13 Rev. of Taxation of Individuals 22 (1989).                 
               With the foregoing as background, we address the critical              
          issue before us, namely, the effect of section 163(h)(2)(A) and             
          section 1.163-8T, Temporary Income Tax Regs., 52 Fed. Reg. 24999            
          (July 2, 1987), and section 1.163-9T(b)(2)(I)(A), Temporary                 
          Income Tax Regs., which specifically denies the deduction herein            
          claimed.  This case is one of first impression in this Court on             
          this issue.  See supra pp. 5-6.  We note, however, that the Court           
          of Appeals for the Eighth Circuit in Miller v. United States, 65            
          F.3d 687 (1995), although agreeing without conclusion as to the             
          pre-section 163(h) state of the law, has accepted respondent's              
          position and held the temporary regulation a reasonable                     
          interpretation of the statute and therefore valid.6                         

          The judicial history of Miller v. United States, 65 F.3d 687                
          (8th Cir. 1995), affg. 95-1 USTC par. 50,068, 76 AFTR2d 95-5162             
          (D.N.D. 1994), revg. 841 F. Supp. 305 (D.N.D. 1993), shows that             
          the District Court initially entered an order, on cross motions             
          for summary judgment, holding that sec. 1.163-9T(b)(2)(I)(A),               
          Temporary Income Tax Regs., 52 Fed. Reg. 48409 (Dec. 22, 1987),             
          was invalid.  Miller v. United States, 841 F. Supp. 305 (D.N.D.             
          1993).  After further discovery, the District Court entered a               
          decision for the Government on the ground that the deficiency               
          interest could not be found to constitute an ordinary and                   
          necessary business expense.  Miller v. United States, 95-1 USTC             
          par. 50,068, 76 AFTR2d 95-5162 (D.N.D. 1994).  The court found              
          the taxpayer "chose to operate what is an obviously improper                
          income deferral scheme in order to defer the reporting of                   
          substantial amounts of money as taxable income."  Id. 95-1 USTC             
          at 87,232, 76 AFTR2d at 95-5166.  The Court of Appeals for the              
                                                             (continued...)           




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