El Charro TV Rental, Inc., Diana L. Peters, Tax Matters Person - Page 9

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          regarding application and interpretation of � 168(f)(1).”  ABC              
          Rentals of San Antonio, Inc. v. Commissioner, __ F.3d __ (10th              
          Cir., Apr. 14, 1998) (slip op. at 6).  In addition, that Court of           
          Appeals also noted that, even if the underlying facts had not               
          been stipulated, “this case still would present a mixed question            
          of law and fact in which the legal issues predominate.”  Id.  In            
          ABC Rentals of San Antonio, Inc. v. Commissioner, supra, the                
          Court of Appeals for the Tenth Circuit decided that section                 
          168(f)(1) did not preclude use of the income forecast method, and           
          the case was remanded to this Court for a decision as to whether            
          a proper election was made under section 168(f)(1) and whether              
          the income forecast method was properly applied to produce                  
          reasonable depreciation allowances.  Id. (slip op. at 23).5                 
               On occasion, this Court relies on a test case process for              
          resolving issues that affect more than one taxpayer.  See Rybak             
          v. Commissioner, 91 T.C. 524 (1988); Clayden v. Commissioner, 90            


          5 The earlier consolidated cases were appealed to different                 
          appellate venues (the Courts of Appeals for the Fifth and Tenth             
          Circuits).  Petitioner, as Tax Matters Person of El Charro,                 
          appealed to the Fifth Circuit, and the other two cases were                 
          appealed to the Tenth Circuit.  Although the El Charro I opinion            
          was affirmed without published opinion by the Fifth Circuit, on             
          Sept. 27, 1996, the Court of Appeals for the Tenth Circuit                  
          reversed and remanded the ABC Rentals of San Antonio case.  See             
          ABC Rentals of San Antonio, Inc. v. Commissioner, 97 F.3d  392              
          (10th Cir. 1996).  A rehearing was sought, and, on Apr. 14, 1998,           
          the Court of Appeals for the Tenth Circuit granted the rehearing            
          petition and vacated and revised its original opinion.  The                 
          revised opinion reversed the decision in the case of ABC Rentals            
          of San Antonio and remanded for further proceedings.                        




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