William Lenehan III and Barbara Lenehan - Page 9




                                        - 8 -                                         
               Section 163(d)(4)(A) defines net investment income as the              
          excess of investment income over investment expense.  Section               
          163(d)(4)(B),5 in turn, defines investment income as follows:               
                    (B)  Investment Income.--The term “investment                     
               income” means the sum of–-                                             
                         (i) gross income from property held for                      
                    investment (other than any gain taken into                        
                    account under clause (ii)(I)),                                    
                         (ii) the excess (if any) of–-                                
                              (I) the net gain attributable                           
                         to the disposition of property held                          
                         for investment, over                                         
                              (II) the net capital gain                               
                         determined by only taking into                               
                         account gains and losses from                                
                         dispositions of property held for                            
                         investment, plus                                             
                         (iii) so much of the net capital gain                        
                    referred to in clause (ii)(II) (or, if                            
                    lesser, the net gain referred to in clause                        
                    (ii)(I)) as the taxpayer elects to take into                      
                    account under the clause.  [Emphasis added.]                      
          At issue in the instant case is the calculation of section                  
          163(d)(4)(B)(ii).  To that end, the meaning of the terms “net               
          gain” and “net capital gain” are integral to our analysis.                  
                    2.  Net Gain                                                      
               Neither section 163, the regulations, the case law, nor the            
          statute’s legislative history defines the term “net gain”.  If a            

               5The Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-           
          66, sec. 13206(d)(1), 107 Stat. 312, 467, amended sec.                      
          163(d)(4)(B) effective for taxable years beginning after Dec. 31,           
          1992.                                                                       





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011