Mel T. Nelson - Page 31

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               Petitioner’s reply brief makes the point in footnote 2, but            
          doesn’t return to it in the text, that, under petitioner’s theory           
          of the case, petitioner in the first instance was entitled to               
          increase the basis of his MAI stock by the full amount of MAI’s             
          COD, $2,030,568, unreduced by its $654,778 of losses.4                      
          Petitioner’s argument on the point runs as follows:  “Section               
          108(b)(4)(A) states clearly that the `reductions described in               
          paragraph (2) [the attribute reductions] shall be made after the            
          determination of the tax imposed by this chapter for the taxable            
          year of the discharge’.  * * *  However, under the timing rules             

               4 No net operating loss as such in the amount of $654,788              
          appears on the MAI Form 1120S.  The capital loss claimed by                 
          petitioner on his return on the disposition of MAI stock (for no            
          consideration) was $2,403,996, apparently not reduced on                    
          petitioner’s return by any losses shown by MAI.  The stipulated             
          record does not disclose the source of the basis of $1,028,206 of           
          petitioner’s stock of MAI that respondent allowed as a long-term            
          capital loss.  One would have thought that, if MAI did have                 
          losses of $654,788, and that petitioner did have $1,028,206 of              
          basis in his stock, then under the general ordering rule of sec.            
          108(b)(2)(A) and (D), such losses would have thus been applied to           
          reduce the basis.  MAI’s Form 1120S shows on its face that MAI              
          had ordinary income of $522,091 (gross income less deductions)              
          which petitioner reported on his return and a section 1231 loss             
          of $651,626 and net loss from rental real estate of $3,152, which           
          add up to the losses of $654,788.  Nevertheless, the sum of the             
          ordinary income shown above and the losses plus other items on              
          Schedule K of the Form 1120S show an overall loss of $155,287.              
          It also appears that petitioner, in addition to showing a basis             
          increase for his MAI stock, also reported positive income of                
          $2,630,730, which may be attributable in part to the COD of MAI.            
               The manner in which the MAI stock petitioner disposed of is            
          not described in the stipulated record.  I would assume that the            
          stock was regarded as worthless.  The MAI Schedule L for the 1991           
          Form 1120S provides an opening balance sheet but no closing                 
          balance sheet.                                                              




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