Estate of Emanuel Trompeter, Deceased, Robin Carol Trompeter Gonzalez and Janet Ilene Trompeter Polacheck, Co-Executors - Page 31

                                       - 31 -                                         

          mandatory and subsequent events could not excuse that obligation.           
          Id. at 861.  In Auerbach Shoe Co. v. Commissioner, 21 T.C. 191,             
          196 (1953), affd. 216 F.2d 693 (1st Cir. 1954), we held that                

                    The taxpayer is required to report the correct                    
               amount of his income in filing a return.  Where this is                
               not done due to the taxpayer's fraudulent conduct,                     
               liability for the 50 per cent addition to the tax for                  
               fraud is incurred and the unforeseen circumstance that                 
               a carry-back later arises to offset the deficiency                     
               should not operate to relieve the taxpayer of the                      
               addition imposed for the fraud. * * * The liability for                
               the additions to the tax for fraud existed from the                    
               time of the filing of the false and fraudulent return                  
               with intent to evade tax.  The addition is to be                       
               measured by the deficiency, undiminished by any                        
               subsequent credit or carry-back. [Emphasis added.]                     

          The key fact relied upon in both C.V.L. Corp. v. Commissioner,              
          supra, and Auerbach Shoe Co. v. Commissioner, supra, was that the           
          event which reduced the original "underpayment" occurred after              
          the return at issue was filed.  The fact that each taxable year             
          is a separate year for income tax purposes was not discussed, nor           
          was it relied upon, in any of the other cases cited by the                  
          majority.3  Consequently, the principle upon which these NOL                
          carryback cases are based is applicable to the present case.                




               3The concept of separate taxable years is clearly not                  
          determinative.  We have stated that if the event creating the               
          deduction occurred in a separate prior year, the deduction would            
          be allowed to reduce the liability for the year at issue for                
          purposes of computing additions to tax.  Blanton Coal Co. v.                
          Commissioner, T.C. Memo. 1984-397 ("The basic principle to be               
          found in prior case law would permit reduction for carryforward             
          loss deductions and credits, but prohibit carryback loss                    
          deductions and credits, when computing additions to tax.").                 


Page:  Previous  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  Next

Last modified: May 25, 2011