Jerry S. Payne - Page 38

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          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.              
















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