Trinova Corporation and Subsidiaries - Page 6

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          ruling on what other otherwise appears to be unqualified language           
          of a consolidated return regulation.  The issue is not new to               
          this Court whose position has been rejected by two Courts of                
          Appeals.  By way of background to our resolution of this judicial           
          conflict, we first turn to a description of the provisions in               
          respect of the investment tax credit pertinent to our analysis.             
               Section 47(a)(1) provided for recapture of the investment              
          tax credit:                                                                 
               If during any taxable year any property is disposed of,                
               or otherwise ceases to be section 38 property with                     
               respect to the taxpayer, before the close of the useful                
               life which was taken into account in computing the                     
               credit under section 38 * * *  [3]                                     

               Section 47(b) further provided:                                        
               For purposes of subsection (a), property shall not be                  
               treated as ceasing to be section 38 property with                      
               respect to the taxpayer by reason of a mere change in                  
               the form of conducting the trade or business so long as                
               the property is retained in such trade or business as                  
               section 38 property and the taxpayer retains a                         
               substantial interest in such trade or business.                        
               Section 47 sets out two prongs for the "mere change in the             
          form" test--first, a continuing trade or business, and second, a            
          retained substantial interest.  The transactions herein clearly             
          satisfy the continuing trade or business requirement.  However,             


          3  Sec. 47(b)(2) provided an exception for certain types of                 
          reorganizations which is not applicable herein (and the parties             
          do not argue otherwise) because the assets transferred to LOF               
          Glass, Inc., did not constitute substantially all of the assets             
          of petitioner.  See Baicker v. Commissioner, 93 T.C. 316, 326               
          (1989).                                                                     




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