- 34 -
Income Tax Regs., does not apply here, we look to the factors
mentioned in section 1.382(a)-1(h)(5), Income Tax Regs., to
determine whether CDC continued to conduct substantially the same
trade or business after its acquisition by petitioner.7
B. Substantially the Same Trade or Business
Section 382 by its terms does not require a corporation to
continue exactly the same trade or business. “[I]t would seem
there could be some changes in the manner of conducting * * *
[the] trade or business and yet the business could remain
'substantially the same.'” Goodwyn Crockery Co. v. Commissioner,
37 T.C. 355, 362 (1961), affd. 315 F.2d 110 (6th Cir. 1963). On
the other hand, the regulations and the legislative history state
that the discontinuance of any except a minor portion of the
6(...continued)
principles of collateral estoppel do not apply in this situation
and that petitioner did not plead collateral estoppel, and
therefore petitioner cannot raise the issue on brief. Petitioner
counters that the issue of collateral estoppel has been tried by
consent within the meaning of Rule 41(b)(1) and, in the
alternative, has filed a Motion for Leave to File Amendment to
Petition to include the issue of collateral estoppel. We have
found that petitioner continued to carry on a trade or business
prior to the change of ownership, and therefore the issue is
moot. Petitioner's motion for leave to amend the petition will
be denied.
7 The relevant periods for making this determination are
the taxable year of the acquisition and the following taxable
year. Sec. 382(a); Princeton Aviation Corp. v. Commissioner,
T.C. Memo. 1983-735; sec. 1.382(a)-1(a)(1), Income Tax Regs.
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