Ann M. Lassiter and Estate of Henry A. Lassiter - Page 7




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               the net operating loss carryover and carryback                         
               provisions “were enacted to ameliorate the unduly                      
               drastic consequences of taxing income strictly on an                   
               annual basis.  They were designed to permit a taxpayer                 
               to set off its lean years against its lush years, and                  
               to strike something like an average taxable income                     
               computed over a period longer than one year.”  [United                 
               States v. Foster Lumber Co., 429 U.S. 32, 42 (1976)                    
               (quoting Libson Shops, Inc. v. Koehler, 353 U.S. 382,                  
               386 (1957)).]                                                          
               The parties agree that if the bankruptcy estate had                    
          terminated in 1994 before the death of Mr. Lassiter, sections 172           
          and 1398(i) would allow Mr. Lassiter to succeed to the NOLs of              
          the bankruptcy estate and would allow petitioners to apply those            
          NOLs on the Lassiters’ 1994 tax return.  The parties also                   
          generally agree on the operation of section 1398, which was                 
          enacted as part of the Bankruptcy Tax Act of 1980, Pub. L.                  
          96-589, sec. 3, 94 Stat. 3397.  In general, and so far as is                
          relevant to this case, the operation of section 1398 is                     
          summarized as follows.  The filing of a bankruptcy petition under           
          Chapter 11 creates a new taxable entity, the bankruptcy estate,             
          that is separate from the debtor.  Sec. 1398.  The bankruptcy               
          estate computes its taxable income in the same manner as an                 
          individual does, except that the entity must use the tax rates              
          applicable to a married individual filing a separate return.                
          Sec. 1398(c).                                                               
               Further, the bankruptcy estate succeeds to and takes into              
          account the individual debtor’s tax attributes (e.g., any NOL               
          carryforward).  Sec. 1398(g).  In the case of NOLs, the                     





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