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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
determination.
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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