S. Robert Davis - Page 37




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          II.  Period of Limitations                                                  
               Respondent concedes that 1976 and 1984 are closed if the               
          Court determines that petitioner did not file fraudulent tax                
          returns for those years.  We have so found, and we agree with               
          respondent.                                                                 
               The parties agree that pursuant to section 6501(h) the                 
          period of limitations on assessment for 1985 remains open for the           
          deficiency attributable to the carryback of the 1988 NOL.                   
          Respondent, however, argues that 1985 is open not only for the              
          deficiency attributable to the 1988 NOL carryback, but for any              
          deficiency for 1985 up to the amount of the NOL carryback.  We              
          are unable to agree with respondent's interpretation of this                
          provision.                                                                  
               Section 6501(h) provides an extended period for assessment             
          in the case of a deficiency attributable to an NOL carryback.               
          Such a deficiency may be assessed at any time before the                    
          expiration of the period within which a deficiency for the year             
          generating the NOL carryback may be assessed.  See sec. 6501(h).            
               The extended period for the assessment of deficiencies under           
          section 6501(h) applies only to deficiencies attributable to NOL            
          carrybacks.  See Bouchey v. Commissioner, 19 T.C. 1078, 1081                
          (1953); Leuthesser v. Commissioner, 18 T.C. 1112, 1125 (1952).              
          Thus, deficiencies for 1985, the NOL carryback year, that are               
          attributable to other items (i.e., non-NOL carryback items) are             





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