Estate of James A. Beaton, Deceased, Shirley Beaton, Executrix, and Shirley Beaton - Page 11

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               the adjustment where such adjustment is treated as if it               
               were a deficiency.  The issuance of such notice of                     
               deficiency, in accordance with the law and regulations                 
               applicable to the assessment of deficiencies will suspend              
               the running of the 1-year period of limitations provided in            
               section 1314(b). * * *                                                 
               Any doubt as to sequencing that might have remained after              
          examining the statute is dispelled by the Treasury Regulations,             
          which require respondent to issue the notice of deficiency within           
          “one year from the date of the determination”.  Thus, the                   
          structure of the mitigation provisions does not leave room for a            
          mitigation claim to be made in a notice of deficiency issued                
          before a relevant determination.                                            
               Because the notices of deficiency in the instant case were             
          issued before the only determinations that could be relevant                
          determinations as to petitioners herein, these notices of                   
          deficiency have not made effective mitigation claims.                       
               This analysis is consistent with, and this conclusion is               
          identical to, that appearing in O’Donnell v. Belcher, 414 F.2d at           
          842-843.                                                                    
               This conclusion also is consistent with the analyses in                
          Benenson v. United States, 385 F.2d at 30-31 n.7, and Cory v.               
          Commissioner, 29 T.C. 903, 907 (1958), affd. 261 F.2d 702, 704              
          (2d Cir. 1958), to the effect that until the decision in the                
          first case became final (1) “there can be no certain need for an            
          adjustment” (Benenson), and (2) the Commissioner “could not                 
          correctly determine a deficiency” for the second case (Cory).               





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