William Lenehan III and Barbara Lenehan - Page 18




                                       - 17 -                                         
               Lastly, petitioners argue that the reference in section                
          4940(c)(4)(C) to "no capital loss carryovers" clearly means that            
          investment income does not include the loss carryover for                   
          purposes of section 163(d).  We disagree.                                   
               Section 4940(c)(4)(C) defines the term “net investment                 
          income”, in part, as follows:                                               
                    (1) In General.--For purposes of subsection (a),                  
               the net investment income is the amount by which (A)                   
               the sum of the gross investment income and the capital                 
               gain net income exceeds (B) the deductions allowed by                  
               paragraph (3).  Except to the extent inconsistent with                 
               the provisions of this section, net investment income                  
               shall be determined under the principles of subtitle A.                
                              *   *   *   *   *   *   *                               
                    (4) Capital Gains and Losses.--For purposes of                    
               paragraph (1) in determining capital gain net income                   
                              *   *   *   *   *   *   *                               
                         (C) Losses from sales or other                               
                    dispositions of property shall be allowed                         
                    only to the extent of gains from such sales                       
                    or other dispositions, and there shall be no                      
                    capital loss carryovers. [Emphasis added.]                        
               However, section 4940 (Excise Tax Based on Investment                  
          Income) is applicable to Subtitle D--Miscellaneous Excise Taxes,            
          Chapter 42A--Private Foundations and Other Certain Tax-exempt               
          Organizations.  Here, we are dealing with income taxes on                   
          individual taxpayers; i.e., Subtitle A--Income Taxes, rather than           
          an excise tax on a private foundation or tax-exempt organization.           
          In addition, there is no cross-reference between sections 4940              
          and 163(d) to make section 4940 applicable to this case.                    





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