- 12 - (1) Under section 1312(7)(A) the relevant determination must determine the basis of the property; (2) Under section 1312(7)(A) there must be a transaction on which such basis depends or a transaction which was erroneously treated as affecting such basis; (3) In respect of a transaction mentioned in (2) above, there must have occurred one of the errors listed in section 1312(7)(C) (namely, the erroneous inclusion in or exclusion from gross income, an erroneous recognition or nonrecognition of gain or loss, or an erroneous deduction of an item properly chargeable to a taxpayer’s capital account or an erroneous charge to a taxpayer’s capital account of an item properly deductible). (4) The error described in (3) above must have occurred with respect to one of the taxpayers described in section 1312(7)(B). As indicated, the narrow issue raised in petitioner’s motion for summary judgment focuses on the first of the above requirements (namely, whether the settlement agreement and/or the Court's decision entered on March 30, 1995, "determined the basis" of the properties as required by section 1312(7)(A)). Generally, to constitute a determination under section 1313(a), a court decision must involve a substantive decision on the merits of a case. See, for example, Commissioner v. Estate of Weinreich, 316 F.2d 97, 103-104 (9th Cir. 1963), affg. in part and revg. in part 37 T.C. 365 (1961), and Cotter v. Commissioner, 40 T.C. 506, 507-509 (1963), in which the courts rendered prior affirmative opinions on the issue or on directly related issues, which opinions were treated as final determinations under the mitigation provisions.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011