Grant K. Hagestad - Page 9

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          Sons, Inc. v. Commissioner, 65 T.C. 422 (1975) (Tannenwald, J.,             
          concurring at 432 (mitigation provisions did not apply because              
          the same items not involved)), affd. 584 F.2d 53 (5th Cir. 1978).           
          Petitioner argues that any deficiency with respect to his 1987              
          taxable year was not due to the CLD, which petitioner concedes he           
          was not entitled to, but due to the inclusion of the $360,000 of            
          income, which respondent initially excluded from the 1987 taxable           
          year, and was forced to re-include as a result of our decision in           
          Hagestad v. Commissioner, supra.  By this argument, petitioner              
          appears to be maintaining that it was the omitted income that was           
          the item giving rise to the error.                                          
               Petitioner's analysis fails to recognize that, while the               
          omission of income provided the foundation for the resulting                
          error, it was the CLD that became the error which gave rise to              
          the application of mitigation provisions.  In this respect,                 
          Bolten v. Commissioner, 95 T.C. 397 (1990), provides helpful                
          guidance.  In that case, the disallowance of certain deductions             
          resulted in increased amounts of taxable income and became the              
          foundation for a reallocation of net operating loss deductions.             
          In holding that the mitigation provisions applied, we concluded             
          that the same item was involved, namely the net operating loss.             
          As we see it, the only difference between the situation in that             
          case and that involved herein is that, in Bolten, unrelated                 
          deductions were involved whereas in the instant case we are                 





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