John M. Harding and Mary J. Harding - Page 6




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          to split the NOLs because they used the word “loss” instead of               
          “losses” which was inconsistent with the election of both types              
          of NOL.  In reaching its holding, the Court of Appeals looked to             
          extrinsic evidence outside of the taxpayers’ statement on their              
          return.  The Court of Appeals considered subsequent amended                  
          returns, expert testimony on the meaning of the term “net                    
          operating loss”, and the intent of the taxpayers’ return                     
          preparer.  Miller v. Commissioner, 99 F.3d 1042 (11th Cir. 1996),            
          revg. 104 T.C. 330 (1995).                                                   
               With that backdrop, we hold that petitioners’ 1994 election             
          was valid and binding, and that it precludes their current                   
          attempt to carry back the 1994 NOL deduction to 1991.  There is              
          no ambiguity as to petitioners’ intentions or extrinsic evidence             
          showing that petitioners intended not to waive the carryback of              
          their 1994 NOL.  To the contrary, at the time of filing their                
          1994 return, petitioners had applied their 1993 NOL to eliminate             
          their 1991 tax liability.  We recognize petitioners’ dilemma                 
          caused by the post-1994 disallowance of their 1993 NOL deduction,            
          which in turn led to respondent’s determination of a 1991 income             
          tax deficiency.  However, the statute recites that such an                   
          election, once made, is irrevocable.  See sec. 172(b)(3).                    
               To reflect the foregoing,                                               
                                              Decision will be entered                 
                                        for respondent.                                






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