- 8 - (4) the party who prevailed in the determination maintained a position that was adopted there and that was inconsistent with the erroneous treatment. Sec. 1311(b). If the mitigation provisions apply, the taxable income for the year of the error may be adjusted under section 1314. Sec. 1311(a). Having invoked the mitigation provisions, respondent bears the burden of proving that each of the four requirements has been met. Fruit of the Loom, Inc. v. Commissioner, 72 F.3d at 1341. Initially, we think it clear that there was an error in that, as a result of our decision in Hagestad v. Commissioner, T.C. Memo. 1993-300, petitioner in fact received the benefit of a CLD for 1987. It is equally clear under section 465(a)(1) that petitioner was not entitled to the CLD for 1987, and indeed petitioner so concedes. It is also clear that the correction of that error is barred by the normal 3-year period of limitations. Thus, the first of the above-stated elements is present. Turning to the second element, a "determination" within the meaning of section 1313(a) includes "a final disposition by the Secretary of a claim for refund". Sec. 1313(a)(3). Petitioner concedes that the 1995 refund is such a determination for the purposes of the mitigation provisions. The determination must also be with respect to the item giving rise to the error. Sec. 1311(a); sec. 1.1311(b)-1, Income Tax Regs.; cf. B.C. Cook &Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011