Ridge L. Harlan and Marjory C. Harlan - Page 35




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               the example given in sec. 1.702(c)(2), Income Tax Regs., conflicts with
               sec. 6501(e)(1)(A)(i) and (ii) because under the latter section “gross 
               income” is specially defined and if a partnership return is filed the  
               entire amount of such “gross income” allocable to a partner is deemed  
               reported on the return.  We do not think the gross income referred to in
               sec. 702(c) is the equivalent of the “gross income” defined under sec. 
               6501(e)(1)(A).                                                         
               In affirming our determination and agreeing with our                   
          analysis, the Court of Appeals took the occasion to state                   
          agreement with our comment on section 702(c), as follows (537               
          F.2d at 705 n.9):                                                           
               We further note that we share the tax court’s opinion that             
               the example in Treas. Reg. � 1.702-1(c) appears to conflict            
               with � 6501(e)(1)(A)(ii)’s method for determining the amount           
               “omitted” from gross income when a partnership return has              
               been filed.                                                            
               We conclude that one pattern that emerges from our prior               
          opinions dealing with the denominator in the 25-percent                     
          calculation, is relevant to the limited matter now before us.  In           
          dealing with documents that were not physically attached to the             
          taxpayer’s tax return, we have consistently12 drawn a line                  
          between (1) documents that have been filed as tax returns of                


               12In Switzer v. Commissioner, 20 T.C. 759, 767-768 (1953),             
          we pointed to computational anomalies that might result from                
          applying this approach to partnerships, and there declined to so            
          apply this approach.  However, on appeal the Commissioner joined            
          the taxpayers to persuade the Court of Appeals to order us to               
          vacate our decisions and enter decisions for the taxpayers.                 
          After we complied with the Court of Appeals’ order in the Switzer           
          dockets, we recognized that the Commissioner had, in effect,                
          conceded error in Switzer’s statute of limitations rulings and              
          meant to apply that concession generally.  See Rose v.                      
          Commissioner, 24 T.C. 755, 768-769 (1955).  In Rose, we merely              
          distinguished Switzer but did not formally overrule it.  See 24             
          T.C. at 769.  However, since that time, we have not followed                
          Switzer on this point.  In the instant cases, neither side cites            
          Switzer.  Clearly, Switzer has been sapped of its vitality.                 




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