El Charro TV Rental, Inc., Diana L. Peters, Tax Matters Person - Page 5

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          not the proper method for depreciating a rental units inventory.            
          Further, the controlling result was limited to the final outcome            
          of the appeal to the Fifth Circuit.  If the income forecast                 
          method had been found to be permissible, it would have then been            
          necessary to consider the underlying facts in this case to                  
          determine whether petitioner qualifies.                                     
               The Court of Appeals for the Fifth Circuit affirmed this               
          Court’s decision without published opinion.  Petitioner here                
          argues that the Court of Appeals' failure to issue a published              
          opinion does not comply with paragraph five of the parties’                 
          stipulation or agreement, which comes into play “If the Circuit             
          Court determines the income forecast method of depreciation is              
          not a proper method for depreciating the rental units”.  It is              
          petitioner's position that the Court of Appeals’ affirmance                 
          without published opinion is not a determination by the Court of            
          Appeals.  This argument is without merit.  By affirming this                
          Court's decision, the Court of Appeals has made the requisite               
               Accordingly, this Court’s opinion in El Charro I is                    
          dispositive.  Our review of ABC Rentals of San Antonio, Inc. v.             
          Commissioner, T.C. Memo. 1994-601, affd. without published                  
          opinion sub nom. El Charro TV Rental, Inc. v. Commissioner, 79              
          F.3d 1145 (5th Cir. 1996), and revd. and remanded 97 F.3d 392               
          (10th Cir. 1996), reveals that this Court did consider and decide           

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