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In Occidental Petroleum Corp. v. Commissioner, supra at 829,
we considered the effect on the alternative minimum tax of the
absence of regulations under section 58(h).6 We stated: "the
failure to promulgate the required regulations can hardly render
the new provisions of section 58(h) inoperative. We must
therefore do the best we can with these new provisions.
Certainly we cannot ignore them." Id. We held that the absence
of regulations did not preclude proper adjustments in respect of
the tax benefit rule, and we proceeded to determine those
adjustments in that case. We reasoned that Congress had intended
section 58(h) to provide a basis for how (as opposed to whether)
the alternative minimum tax should be applied in order to take
into account the tax benefit rule. See Estate of Neumann v.
Commissioner, supra at 220.
On brief, respondent argues that our decision in Occidental
Petroleum Corp. v. Commissioner, supra, is distinguishable for
several reasons. First, respondent contends that section 58(h)
explicitly provided that a particular rule (i.e., the tax benefit
rule) was to be adopted in the regulations, whereas "section
865(j) merely provides that regulations are to be promulgated
with respect to a particular subject matter but does not state or
imply what rules are to be adopted with respect thereto."
6Sec. 58(h) provided that "The Secretary shall prescribe
regulations under which items of tax preference shall be properly
adjusted where the tax treatment giving rise to such items will
not result in the reduction of the taxpayer's tax under this
subtitle for any taxable years."
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