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In support of the instant motion for summary judgment and as
a matter of law, petitioner argues primarily that the fact
situation presented to us in this case does not qualify under any
of the specific circumstances of adjustments described in section
1312 and therefore that the second of the above conditions is not
satisfied in this case. Petitioner does not concede that the
other requirements of the mitigation provisions are satisfied.
More specifically, petitioner argues that under section
1312(7), the particular circumstance of adjustment on which
respondent relies, the alleged determination that occurred under
section 1313(a) (namely, the Tax Court decision) must itself
"determine the basis" of the property in question. Petitioner
then argues that the particular stipulation of settled issues
that was filed and the decision that was entered by the Court in
the 1989 Fong case based on such stipulation (that reflected a
$21,160 adjustment to petitioner's 1989 claimed depreciation
expense from the Lily Partnership) cannot, as a matter of law, be
regarded as a determination under section 1312(7) of the tax
bases of the properties.
In order for mitigation to apply under the particular and
specific circumstance of adjustment described in section 1312(7),
the existence of each of the following additional conditions must
be established:
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