J. David Golub - Page 25




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          reported none of this refund on his Federal income tax return for            
          1991.8                                                                       
               In this case, petitioner’s 1990 return indicates taxable                
          income of a minus $13,489.  Included in the amounts deducted for             
          that year on Schedule C under “Taxes and licenses” was the amount            
          of $1,099,9 which petitioner labeled “State and local”.  It is               
          obvious that the deduction of State income taxes produced no tax             
          benefit to petitioner for 1990; he would have had a negative                 
          amount for taxable income in any event.  Accordingly, under the              
          regulations promulgated pursuant to section 111, the $1,743.89 in            
          State taxes refunded to petitioner in 1991 constitute a “recovery            
          exclusion” and need not be included in gross income for that                 
          year.10                                                                      


               8 Under sec. 451, the full $1,743.89 would ordinarily be                
          included in income.  The $743.89 would be included because it was            
          actually received by petitioner, and the $1,000 which he directed            
          be credited against his 1991 State income tax liabilities would              
          be included in his gross income as “constructively received”                 
          insofar as it is credited to petitioner’s account, or set apart              
          for him, or otherwise made available to him.  Sec. 1.451-2(a),               
          Income Tax Regs.                                                             
               9 Petitioner has not explained the apparent discrepancy                 
          between his 1990 deduction of $1,099 for “State and local” taxes             
          and the return in 1991 of $1,743.89 of such taxes.                           
               10 The regulations under sec. 111 also provide that “the                
          aggregate of the section 111 items [e.g., the State income taxes             
          paid for a prior year] must be further decreased by the portion              
          thereof which caused a reduction in tax in preceding or                      
          succeeding taxable years through any net operating loss                      
          carryovers or carrybacks * * * affected by such items.”  Sec.                
                                                              (continued...)           




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