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valid. Likewise, in Carlstedt Associates, Inc., v. Commissioner,
T.C. Memo. 1989-27, the following statement was found to be
unequivocal and a binding election: “IN ACCORDANCE WITH CODE
SECTION 172(b) TAXPAYER HEREBY ELECTS TO RELINQUISH THE ENTIRE
CARRYBACK PERIOD WITH RESPECT TO THE CURRENT NET OPERATING LOSS.”
In Powers v. Commissioner, 43 F.3d 172 (5th Cir. 1995), affg. in
part, revg. in part and remanding 100 T.C. 457 (1993), however,
the Court of Appeals for the Fifth Circuit held that referencing
a Code section other than section 172 served to make a taxpayer’s
election ineffective. In Powers, the taxpayer referenced section
56(b)(3)(C), and no reference was made to section 172. The Court
of Appeals for the Fifth Circuit observed in Powers that Santi v.
Commissioner, supra, was distinguishable because the taxpayer
there referred to section 172. See Powers v. Commissioner, supra
at 178 n.7. By the same token, petitioners’ case may be
distinguished from Powers.
In a case involving a section 172(b)(3)(C) election and the
taxpayers’ attempt to split “regular NOLs” and “alternative
minimum tax NOLs”, we held that the taxpayers’ election was
unambiguous on its face and binding, even though the taxpayers
may have intended to make the election for only one type of NOL.
Miller v. Commissioner, 104 T.C. 330 (1995), revd. 99 F.3d 1042
(11th Cir. 1996). The Court of Appeals for the Eleventh Circuit
reversed, holding that the taxpayers were attempting an election
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