Best Life Assurance Company of California - Page 11




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                  The Golsen rule, however, applies only where the relevant                            
            Court of Appeals' decision is “squarely in point”:                                         

                  We shall remain able to foster uniformity by giving                                  
                  effect to our own views in cases appealable to courts                                
                  whose views have not yet been expressed, and, even where                             
                  the relevant Court of Appeals has already made its views                             
                  known, by explaining why we agree or disagree with the                               
                  precedent that we feel constrained to follow. [Id.                                   
                  at 757.]                                                                             

            The Golsen rule does not apply where the precedent from the Court                          
            of Appeals constitutes dicta or contains distinguishable facts or                          
            law.  See, e.g., Hefti v. Commissioner, 97 T.C. 180, 187 (1991)                            
            (dictum not controlling), affd. 983 F.2d 868 (8th Cir. 1993);                              
            Metzger Trust v. Commissioner, 76 T.C. 42, 72-74 (1981) (factual                           
            distinctions render Golsen rule not squarely on point), affd. 693                          
            F.2d 459 (5th Cir. 1982); Kueneman v. Commissioner, 68 T.C. 609,                           
            612 n.4 (1977) (distinct legal question not governed by the                                
            Golsen rule), affd. 628 F.2d 1196 (9th Cir. 1980).  As we stated                           
            in Lardas v. Commissioner, 99 T.C. 490, 493-495 (1992), the                                
            Golsen rule only applies where the “clearly established” position                          
            of a Court of Appeals signals “inevitable” reversal upon appeal.                           
                  In United States v. Occidental Life Ins. Co., supra, the                             
            Court of Appeals for the Ninth Circuit analyzed the meaning of                             
            the term “unpaid losses” under former section 806(c), a tax                                
            deduction provision repealed in 1959.  In that case, the parties                           
            stipulated that unpaid losses in section 801 (now section 816)                             






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