Grant K. Hagestad - Page 7

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          scenario is a textbook example of the kind of abuse the                     
          mitigation provisions were designed to prevent.  Petitioner, on             
          the other hand, contends that the 1987 CLD was disallowed, and              
          that the fact that respondent failed timely to assess a                     
          deficiency does not alter this fact.  Thus, petitioner argues, he           
          did not maintain an inconsistent position by carrying forward the           
          disallowed deduction as permitted by section 465(a)(2).                     
          Petitioner asserts that whatever unpaid tax liability which might           
          exist is due not to any action on the part of petitioner, but is            
          a consequence of respondent's litigation gamble.                            
               In Fruit of the Loom, Inc. v. Commissioner, 72 F.3d 1338,              
          1341-1342 (7th Cir. 1996), affg. T.C. Memo. 1994-492, the Court             
          of Appeals for the Seventh Circuit approved our articulation of             
          the following elements involved in determining whether the                  
          mitigation provisions apply:                                                
                    (1) An error occurred in a taxable year which cannot              
               otherwise be corrected by operation of law, sec. 1311(a);              
                    (2) there was a determination, within the meaning of              
               section 1313(a), for another year with respect to the item             
               giving rise to the error, sec. 1311(a);                                
                    (3) the determination was within one of the categories            
               enumerated in section 1312 as a circumstance of adjustment             
               (e.g., a double allowance of a deduction, sec. 1312(2)),               
               sec. 1311(a); and                                                      





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