Matti Kosonen - Page 15




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               5.   Whether the Result of Concluding That Petitioner Did                
                    Not Elect Under Section 469(c)(7) Is Too Harsh                      
               Petitioner contends that in deciding whether a taxpayer                  
          properly elected, we must consider whether the sanction imposed               
          on the taxpayer for failure to comply would be excessive and out              
          of proportion to the default.  Petitioner contends that the                   
          result here is harsh and out of proportion to any failure to                  
          elect properly.  Petitioner cites American Air Filter Co. v.                  
          Commissioner, 81 T.C. 709, 719 (1983), to support his contention              
          that we must consider the harshness of the result if we find that             
          he did not elect as he claimed.                                               
               In American Air Filter Co. v. Commissioner, supra, we                    
          considered whether the result was harsh as a factor in deciding               
          whether the taxpayer substantially complied with regulations                  
          which stated how to make an election.  American Air Filter Co.                
          does not apply here because the issue here is not whether                     
          petitioner substantially complied with a regulation.  If                      
          petitioner did not elect under section 469(c)(7) in 1994 as he                
          contends, then his 1994 and 1995 losses are suspended under                   
          section 469(b) as they were in years before 1994, and he may not              
          deduct the rental losses that he incurred in 1994 and 1995.  We               
          do not believe that result is harsh or out of proportion to                   
          petitioner’s failure to elect.                                                









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