KRP, Inc., Roy G. Johnson, Tax Matters Person - Page 6




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          the provisions of section 1374 applied to KRP’s sale of the gas             
          stations and that the built-in gain on the sale was $388,877.               
          Page 37 of the FSAA states that the “Taxpayer is also entitled to           
          a loss for 1995 equivalent to the amount of built-in gains                  
          ($136,107) that it is liable for.”  The FSAA states that KRP (the           
          taxpayer) is liable for the tax.  Petitioner characterizes this             
          language as an “aside comment”.  We disagree and conclude that              
          respondent determined that “Pursuant to Code section 1366(f)(2),            
          KRP, Inc. [was] entitled to a loss equivalent to the amount of              
          built-in gains tax ($136,107) imposed with respect to its 1995              
          corporate income tax return Form 1120S” and that KRP was liable             
          for built-in gains tax of $136,107.                                         
               C.   Is the Built-In Gains Tax a Subchapter S Item?                    
               Petitioner contends that the built-in gains tax is not a               
          subchapter S item and the Tax Equity and Fiscal Responsibility              
          Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 324, audit and                
          litigation procedures do not apply to the built-in gains tax.               
          Respondent contends that the built-in gains tax is a subchapter S           
          item and the TEFRA audit and litigation procedures do apply.                
                    1.   N.Y. Football Giants, Inc. v. Commissioner                   
               Before the issuance of N.Y. Football Giants, Inc. v.                   
          Commissioner, 117 T.C. 152 (2001), petitioner filed a reply to              
          respondent’s response to motion for partial summary judgment                
          (reply) arguing that the decision in N.Y. Football Giants, Inc.             






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