Shizuo George Kurata - Page 6

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            the sale as follows:  (1) gross settlement proceeds of $212,861,                          
            (2) settlement charges of $6,852, (3) legal costs of $2,907, and                          
            (4) operating loss carryover of $11,912.  From those figures,                             
            petitioner calculates an amount realized of $191,189 ($191,189 =                          
            $212,861 - $6,852 - $2,907 - $11,912).  In calculating an amount                          
            realized of $207,593 from the sale of the five units, respondent                          
            argues that $210,500 is the correct figure for settlement                                 
            proceeds, subtracts legal costs of $2,907 ($207,593 = $210,500                            
            - $2,907), and does not consider the $6,852 in settlement charges                         
            claimed by petitioner.  Only after calculations for the amount                            
            realized and gain realized are complete (and the gain is included                         
            as an item of gross income; see section 61(a)(3)), does                                   
            respondent subtract the operating loss carryover of $11,912 in                            
            arriving at taxable income (see sections 161, 172).  The                                  
            difference between the parties' figures for the amount realized,                          
            thus, results from a disagreement over the correct amount of                              
            settlement proceeds and charges to be considered in calculating                           
            the amount realized, as well as the placement of the operating                            
            loss carryover in the computations.                                                       
                  First, we agree with respondent that the operating loss                             
            carryover should properly be considered, if at all, only in                               
            determining taxable income and not in the separate, and                                   
            preceding, operation of determining gain realized.  Compare                               
            secs. 61(a)(3) and 1001 with secs. 161 and 172.  Since the                                






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