- 18 - basis adjustment that applies without regard to whether the loss property is subsequently resold at a gain or loss. 2. Does the Temporary Regulation Permissibly Accrue the Benefit of the Deferred Loss to the Purchasing Member Rather Than to the Selling Member? Petitioner argues that recognition of the deferred loss by the purchasing party is inconsistent with a general principle that allowable losses should be confined to the taxpayer sustaining them, citing various cases, including New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440-441 (1934). Section 267, however, constitutes a statutory exception to any such general principle. Losses otherwise allowable under section 165 are disallowed under section 267 to prevent abuses resulting from the generation of loss deductions by persons with common economic interests. See Davis v. Commissioner, 88 T.C. 122 (1987), affd. 866 F.2d 852 (6th Cir. 1989); Hassen v. Commissioner, 63 T.C. 175 (1974), affd. 599 F.2d 305 (9th Cir. 1979). In McWilliams v. Commissioner, 331 U.S. 694 (1947), the Supreme Court thoroughly considered and explained the purposes of section 24(b) of the Internal Revenue Code of 1939, which was the predecessor to section 267: Section 24(b) states an absolute prohibition--not a presumption--against the allowance of losses on any sales between the members of certain designated groups. The one common characteristic of these groups is that their members, although distinct legal entities, generally have a near- identity of economic interests. It is a fair inference that even legally genuine intra-group transfers were not thoughtPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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