- 24 -
After considering the merits of the transitional rule
elections, Mr. Brown and Mr. Hemmings (collectively petitioners)
filed their 1981 Federal income tax returns without making either
of the elections. The reporting of the pre-June 24 positions
reflected that choice. Petitioners, by amended petitions, now
seek to alter that choice long after the deadline for filing such
elections contained in the statutes and regulations.
Where Congress has set an explicit time limit for making an
election, extending the time beyond the limits prescribed is a
legislative not a judicial function. Riley Co. v. Commissioner,
311 U.S. 55, 58 (1940); see also Scaife Co. v. Commissioner, 314
U.S. 459, 462 (1941); Brutsche v. Commissioner, 585 F.2d 436, 439
(10th Cir. 1978), vacating and remanding 65 T.C. 1034 (1976);
Frentz v. Commissioner, 44 T.C. 485, 490 (1965), affd. 375 F.2d
662 (6th Cir. 1967); Taylor v. Commissioner, T.C. Memo. 1987-399;
Welsh v. United States, 2 Cl. Ct. 417, 420 (1983). Accordingly,
petitioners' untimely elections under ERTA section 509 cannot be
given effect, and we turn to petitioners' untimely elections
under ERTA section 508(c).
In contrast to the deference afforded Congressionally
created time limits, the adherence to administratively created
time limits is not always mandated, even where that time limit is
created pursuant to a Congressional delegation of authority. See
Dougherty v. Commissioner, 60 T.C. 917, 938 (1973). Petitioners
assert that their untimely elections should be respected because
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