James E. Redlark and Cheryl L. Redlark - Page 66

                                       - 66 -                                         
          categories of debt.  The tracing method of interest allocation              
          settled on by the Secretary is applicable across the board, not             
          just in the case of an indebtedness arising on account of an                
          underpayment.  Indeed, it is difficult to discern a coherent                
          scheme of interest allocation from the three cited cases.  It               
          would be a very small tail wagging a very large dog if we were to           
          let those cases determine what is a proper method of interest               
          allocation for all classifications of indebtedness.                         
                    3.  Discrimination as to Form of Doing Business                   
               The majority postulates that (1) the expenditure method of             
          allocation found in section 1.163-8T, Temporary Income Tax Regs.,           
          "excludes an entire category of interest expense in disregard of            
          a business connection such as exists herein" and (2) "Such a                
          result discriminates against the individual who operates his or             
          her business as a proprietorship instead of in corporate form               
          where the limitations on the deduction of 'personal interest'               
          would not apply."  Majority op. pp. 16-17.                                  
               As a preliminary matter, the majority has not identified               
          the business connection here.  The majority relies on cases whose           
          reasoning it concedes is confusing.  Majority op. p. 11.                    
          Moreover, the majority has warned that, to satisfy section                  
          163(h)(2)(A), it is insufficient simply to show that the cause of           
          the deficiency interest is an underpayment of income tax                    
          attributable to a trade or business.  Majority op. pp. 26-27.               
          The majority has not specified the principles to be used in                 
          deciding future cases.  Assuming that there are such principles,            
          however, the majority does not explain why Congress may not                 



Page:  Previous  48  49  50  51  52  53  54  55  56  57  58  59  60  61  62  63  64  65  66  67  Next

Last modified: May 25, 2011