Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 7

                                        - 7 -                                         

          recomputing the amount of decedent's income tax for the years               
          1975 through 1980 pursuant to section 1341(a)(5).  Respondent               
          argues that the section 1341(a)(5) adjustment is limited to the             
          portion of the $681,840 settlement that represents excess                   
          royalties that were paid to and reported by decedent during the             
          years 1975 through 1980.  We agree with respondent.                         
               Neither party cites any case law to support their respective           
          positions.  Nevertheless, the language of the statute indicates             
          that its relief is focused on a "taxpayer", who reported an                 
          "item" in "gross income" for a "prior taxable year" where it is             
          established after the close of that taxable year "that the                  
          taxpayer did not have an unrestricted right to such item".  Sec.            
          1341(a).  The computation contained in section 1341(a)(5) directs           
          the taxpayer to recompute the tax for the "prior taxable year (or           
          years) which would result solely from the exclusion of such item            
          (or portion thereof) from gross income for such prior taxable               
          year (or years)."  From this, we believe it is clear that section           
          1341 relief is restricted to items of income previously received            
          and reported by a taxpayer who must repay those same items in a             
          subsequent year.                                                            
               Kraft v. United States, 991 F.2d 292 (6th Cir. 1993),                  
          supports this analysis.  In Kraft, the taxpayer invoked section             
          1341 based upon amounts he was required to repay because of a               
          fraud perpetrated in prior years.  The fraudulently obtained                
          funds had been deposited into a corporate account and reported as           
          corporate income.  The taxpayer's benefit came in the form of               




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  Next

Last modified: May 25, 2011