- 54 - 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 otherwisePage: Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 Next
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