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the reduction of the taxpayer's tax under this subtitle
for any taxable years.
Although section 58(h) was added to the Code at a time when
the only minimum tax in the Code was the add-on rather than the
AMT, it survived the transition between the two types of minimum
tax that occurred in 1982 post-TEFRA.
That Congress affirmatively chose to retain the tax benefit
rule in the wake of the Tax Reform Act of 1986, Pub. L. 99-514,
100 Stat. 2085, is demonstrated by the fact that the provision
was renumbered as section 59(g) and its language slightly
changed. Nevertheless, there are substantive differences between
former section 58(h) and current section 59(g). Effective for
taxable years after 1986, section 59(g), as amended by the
Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239, 103
Stat. 2106, provides as follows:
The Secretary may prescribe regulations under which
differently treated items shall be properly adjusted
where the tax treatment giving rise to such items will
not result in the reduction of the taxpayer's regular
tax for the taxable year for which the item is taken
into account or for any other taxable year. [Emphasis
added.]
The substitution of the word "may" for "shall" in section
59(g) renders the tax benefit rule discretionary. (In First
Chicago Corp. v. Commissioner, 88 T.C. 663, 676 n.11 (1987),
affd. 842 F.2d 180 (7th Cir. 1988), we drew attention to the word
change in section 59(g), but noted that it did not affect the
outcome of that case since the change did not apply to the tax
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