Grant K. Hagestad - Page 13

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               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, he                   





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