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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deduction provision repealed in 1959.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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