Diesel Performance, Inc. - Page 7




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               In Young v. Commissioner, 83 T.C. 831, 840-841 (1984), affd.           
          783 F.2d 1201 (5th Cir. 1986), this Court concluded that the                
          taxpayer's "amended return is irrelevant" in determining                    
          substantial compliance with the election requirements.  In                  
          rejecting the taxpayer's argument that section 7.0(d), Temporary            
          Income Tax Regs., 42 Fed. Reg. 1469 (Jan. 7, 1977), provides that           
          an election may be made in an amended return, the Court                     
          explained:                                                                  
               This is true; however, in order to square the                          
               regulation with the directive of the statute, an                       
               election made in a subsequently filed return can only                  
               be effective if the subsequently filed return is filed                 
               before the due date of the return.  [Young v.                          
               Commissioner, supra at 841 n.9.]                                       
               We accept that petitioner made an honest mistake when filing           
          its original return for the tax year ending June 30, 1992.                  
          Furthermore, we accept that it attempted to elect to relinquish             
          the carryback period on its amended return for the tax year                 
          ending June 30, 1992.  The due date, with extensions, of                    
          petitioner's return for the tax year ending June 30, 1992,                  
          however, was March 15, 1993.  Petitioner did not file the amended           
          return with the election until March 25, 1994.  Therefore,                  
          petitioner did not make a timely election to waive the carryback            
          period on its amended return for the tax year ending June 30,               
          1992.  See Young v. Commissioner, supra; Klyce v. Commissioner,             
          T.C. Memo. 1999-198; Menaged v. Commissioner, T.C. Memo. 1991-79.           






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