Ted W. Gleave - Page 54

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          it owed, by conduct intended to conceal income, and prevent the             
          collection of taxes.                                                        
               (e) 1980                                                               
               In general, if (1) a net operating loss is carried back from           
          a fraud year to a nonfraud year, (2) a credit or refund is issued           
          to the taxpayer, and (3) the credit or refund leads to an                   
          underpayment for the nonfraud year, then the underpayment for the           
          nonfraud carryback year is treated as due to the fraud of the               
          loss year.  Toussaint v. Commissioner, 743 F.2d 309 (5th Cir.               
          1984), affg. T.C. Memo. 1984-25.  Our holding that Toussaint is             
          distinguishable and the rule is otherwise if the carryback is of            
          a new jobs credit and the amount of the claimed credit is                   
          nonfraudulent, was reversed.  Arc Elec. Const. Co. v.                       
          Commissioner, 923 F.2d 1005 (2d Cir. 1991), revg. T.C. memo.                
          1990-30.  It appears that Kenmore’s entire fiscal 1980                      
          underpayment is attributable to a carryback from Kenmore’s fiscal           
          1981, which may have been a carryback of a net operating loss or            
          of an investment or new jobs credit.  Supra note 7.  The parties            
          have stipulated that the instant cases are appealable to the                
          Court of Appeals for the Second Circuit, which reversed us in Arc           
          Elec.                                                                       
               Our conclusion that Kenmore’s fiscal 1981 underpayment is              
          due to fraud leads us to conclude that Kenmore’s fiscal 1980                
          underpayment also is due to fraud, whether the carryback was of a           
          fiscal 1981 net operating loss (Toussaint) or an otherwise                  






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