- 10 - dealing with an item of income. However, both deductions and omissions affect the determination of taxable income. Consequently, we think that any distinction based on a "same item" argument is a distinction without a difference. In short, we are satisfied that the second element enunciated in Fruit of the Loom, Inc. v. Commissioner, supra, has been satisfied. Finally, we turn to the third and fourth elements enunciated in Fruit of the Loom test. These elements require that there be a double deduction, section 1312(2), and that petitioner have maintained inconsistent positions with respect to the deduction, section 1311(b). That is, the carryforward of a portion of the CLD to 1991 must be inconsistent with the "treatment accorded" that portion in 1987. Sec. 1.1311(b)-1(a), Income Tax Regs. Since it is clear that a portion of the CLD was allowed in 1991 by the 1995 refund, we would have to find that that portion of the deduction had also been allowed in 1987 for the mitigation provisions to apply. Thus, the decision in this case turns on what exactly was the "treatment accorded" the deduction in 1987-- was it allowed or not? If it was allowed, this would be the "erroneous treatment" needed to invoke the mitigation provisions, the determination would reflect a case of double deduction, one of the enumerated circumstances of adjustment, section 1312(2), and the facts of this case would fit squarely under the prohibition against doublePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011