Charles McHan and Martha McHan - Page 5

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          understatement under section 6661 for 1985 is computed based upon           
          10 percent of the underpayment as opposed to the 25-percent rate            
          used in the notice of deficiency; (2) respondent is collaterally            
          estopped in this case from litigating a second time the issue               
          resolved by the District Court in petitioner's criminal case                
          concerning the amount of petitioner's profits from his illegal              
          activities; (3) petitioner is not required to substantiate the              
          amount of the net operating loss (NOL) reported in his 1987 tax             
          return and carried back to 1985 and 1986 on the ground that the             
          period of limitations with respect to 1987 has expired; (4) the             
          NOL that petitioner reported in his 1987 tax return accrued on              
          December 31, 1987; and (5) consistent with the holding of the               
          District Court in the criminal case, petitioner did not earn                
          profits from his criminal enterprise in 1986 and 1987.                      
               Respondent filed an objection to petitioner's motion.  In              
          particular, respondent contends that she properly computed the              
          addition to tax under section 6661 based upon 25 percent of the             
          underpayment (rather than 10 percent) because the 1986 amendment            
          to section 6661 increasing the rate from 10 percent to 25 percent           
          is effective with respect to assessments made after enactment of            
          the amendment.  In addition, respondent maintains that                      
          petitioner's motion should be denied to the extent that                     
          petitioner asserts that respondent is barred by the doctrine of             
          collateral estoppel from contesting the District Court's findings           
          in the criminal case inasmuch as the District Court's decision              




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