- 42 -
U.S. , , 115 S.Ct. 810, 813-814 (1995)), I concur in the
majority's holding that it is outside the bounds of her
regulatory authority under section 7805(a).7 Section
1.163-9T(b)(2)(i)(A), Temporary Income Tax Regs., is invalid.
Accord Professional Equities, Inc. v. Commissioner, 89 T.C. 165
(1987); Stephenson Trust v. Commissioner, 81 T.C. 283 (1983); see
RLC Industries Co. v. Commissioner, 58 F.3d 413, 418 (9th Cir.
1995), affg. 98 T.C. 457 (1992).
SWIFT, WRIGHT, PARR, and VASQUEZ, JJ., agree with this
concurring opinion.
7 I note that the Commissioner's position in the instant
case is inconsistent with a recent administrative position of
hers. In Rev. Rul. 92-29, 1992-1 C.B. 20, the Commissioner
modified Rev. Rul. 70-40, 1970-1 C.B. 50, to state that sec.
62(a)(1) allows an individual to deduct litigation expenses
incurred in determining State and Federal income taxes on income
derived from his or her trade or business. The recent ruling
also states that an individual may deduct the portion of a tax
preparation fee that is attributable to his or her
sole-proprietor business. Given the Commissioner's position with
respect to these litigation expenses and tax preparation fees, I
am unable to fathom why she continues to believe that the
interest on a tax deficiency that is allocable to a trade or
business is not also deductible.
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