- 38 - one of the tax years is closed with regard to assessment. Herrington v. Commissioner, 854 F.2d 755, 757 (5th Cir. 1988), affg. 87 T.C. 1087 (1986). With regard to petitioner's 1988 tax year, respondent seeks to apply the doctrine where only one taxable year is involved, where respondent audited the 1988 income tax return of 2618 Inc and where respondent issued a no-change report. In this case, we decline to apply the duty of consistency to petitioner with regard to this adjustment. The absence of Helmle's consent makes the attempted S election by 2618 Inc invalid for 1988, and petitioner is not required to report the additional $91,668 in flow-through income from 2618 Inc that represented nondeductible repayments on a loan. Petitioner’s attempt, however, on brief, to raise a new issue and to remove from his taxable income the $32,326 in flow-through income from 2618 Inc that petitioner did report on his 1988 Federal income tax return is rejected. Petitioner’s claim in this regard constitutes a claim for refund with regard to an item not properly raised by petitioner as a new issue under our Rules. Rule 41.Page: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
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