Edith Hunter Hornberger, et al. - Page 16




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          petitioner to have claimed a deduction on her 1988 amended return           
          and not reported the 1992 refund she received.  We agree with               
          respondent.                                                                 
               The trust originally paid the interest on the tax deficiency           
          and deducted that amount, $2,724,752, as an interest expense on its         
          1988 fiduciary return.  When this return was amended to reflect the         
          agreement among the IRS, the trust representatives, and petitioner          
          to recharacterize the trust as a grantor trust, the interest                
          expense deduction the trust had claimed was allocated to petitioner         
          and was reflected on her amended 1988 income tax return.  The               
          deduction resulted in a tax benefit in proportion to the full               
          amount of the deduction.  And the amount was ultimately returned to         
          petitioner (via the refund check) in 1992.13                                
               In sum, the refund of the interest on the tax deficiency,              
          previously deducted, gives rise to taxable income under the tax-            


               12(...continued)                                                       
          return attributed “to Edith Hunter Hornberger all trust income              
          and deductions, including the deduction for the $2,357,495.08 of            
          interest paid on the estate tax.”                                           
               13   In Hillsboro Natl. Bank v. Commissioner, 460 U.S. 370             
          (1983), the Hillsboro Bank paid State taxes and deducted them               
          when paid, pursuant to sec. 164(e).  Later, the State refunded              
          the taxes directly to the bank’s shareholders.  The Government              
          sought to include the shareholders’ refund of the State taxes in            
          the income of the bank.  See id. at 372-374.  The Supreme Court             
          concluded that “unless a nonrecognition provision of the Internal           
          Revenue Code prevents it, the tax benefit rule ordinarily applies           
          to require the inclusion of income when events occur that are               
          fundamentally inconsistent with an earlier deduction.”  Id. at              
          372.                                                                        





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