- 13 - In Chertkof v. Commissioner, 66 T.C. 496 (1976), affd. 649 F.2d 264 (4th Cir. 1981), the Commissioner asserted a deficiency based on shifting income from a later year to an earlier year. The Commissioner issued a refund on his own initiative for the later year. The taxpayer paid the deficiency, sued in District Court, and won a refund for the earlier year. The Commissioner then sought relief under the mitigation provisions to assert a deficiency with respect to the later year. This Court rejected the taxpayers' argument that there was no error as to the later year because the refund had been forced upon them. In Priest Trust v. Commissioner, 6 T.C. 221 (1946), the taxpayer trust was prepared to pay tax on a distribution on behalf of a beneficiary, but the Commissioner gave it a deduction. This Court later determined that the beneficiary should not be taxed. In a later action by the Commissioner under the mitigation provisions to re-open the year the trust received the deduction, this Court rejected the trust's argument that it "privately" maintained a consistent position because it did not originally claim the deduction: It does not seem important to us who proposed the allowance of the deduction, or upon what theory. The important fact is that it was allowed, that a tax was paid pursuant to the allowance of the deduction, and that the action was erroneous. * * * [Id. at 226.] In the same way, in spite of the fact that petitioner agreed in principle that he was not entitled to the 1987 CLD, hePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011