Grant K. Hagestad - Page 14

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          nevertheless "took" it, that is, used it to reduce his gross                
          income, and paid less tax as a result, and it was thus certainly            
          "allowed", in the plain meaning of those words.  "To argue                  
          otherwise is merely to play games with words."  Bolten v.                   
          Commissioner, 95 T.C. at 407.                                               
               The fallacy of petitioner's position herein becomes apparent           
          in the following context.  Assume a scenario in which: (1) Only             
          petitioner's 1986 and 1988 returns had been audited and the CLD's           
          for those years had been disallowed and, after litigation, the              
          disallowances were sustained; (2) petitioner's 1987 return had              
          never been audited; and (3) petitioner had applied the decisions            
          in respect of 1986 and 1988 to the 1987 CLD in determining its              
          carryforward of suspended amounts under section 465(a)(2) and               
          obtained a refund for 1991 based on those carryforwards.  There             
          can be no doubt that, in this scenario, the CLD was allowed for             
          1987, for purposes of the mitigation provisions.  We think that             
          the situation in this case is no different.  The inescapable fact           
          is that the determination that the $360,000 was properly reported           
          by petitioner in 1987 produced the result that the disallowance             
          of the CLD was negated because of the expiration of the period of           
          limitations and petitioner was left in the same position as he              
          would have been in if his 1987 return had never been audited.               
               In our analysis, we have kept in mind that the legislative             
          history contemplated the type of facts involved here: "disputes             





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