Jacob and Chana Pinson, et al. - Page 46




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          the income is to be treated as compensation to the individuals,             
          we further conclude that payments are U.S. source income to the             
          individual petitioners other than Mr. and Mrs. Zeiler.                      
               D.  Alternative Availability of Deduction                              
               Without further argument or discussion, petitioners included           
          the following statement in their opening brief:                             
               if the effect of * * * [the Court’s] holdings is to                    
               reduce the amount of foreign tax credits available to                  
               the petitioners during the years at issue, then, as                    
               part of the Rule 155 Computation, the petitioners                      
               reserve the right to elect to take a deduction for the                 
               stipulated foreign taxes paid in lieu of the foreign                   
               tax credit for any or all of such years pursuant to                    
               Code � 164(a)(3) and Treas. Reg. � 1.901-1(d).                         

          This issue had not previously been raised through the pleadings             
          or at trial, and respondent objected thereto in his reply brief,            
          asserting that petitioners’ claim was not a proper subject for a            
          Rule 155 computation and should have been addressed as part of              
          the merits of the case.  Respondent’s opening brief had also                
          contained, within a general discussion of the law relating to the           
          foreign tax credit, the statement that “Once a taxpayer elects to           
          take the credit, section 275(a)(4)(A) prohibits the claiming of             
          the taxes as a deduction.”  Petitioners responded to this remark            
          in their reply brief with a single paragraph:                               
                    Moreover, the respondent contends that once a                     
               taxpayer elects to take a foreign tax credit, Section                  
               275(a)(4)(A) prohibits the claiming of the taxes as a                  
               deduction.  In fact, Treas. Reg. � 1.901-1(d) allows a                 
               taxpayer to claim a deduction in lieu of a foreign tax                 
               credit at any time before the expiration of the statute                





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