Grant K. Hagestad - Page 8

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                    (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 &                





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