- 12 - 2(a)(1), Income Tax Regs.,11 to reach the conclusion that a contested12 income tax deficiency that has been paid is deductible within the meaning of section 535(b)(1). Rutter Rex, supra at 1296. We note that the Court of Appeals for the Fifth Circuit did not invalidate section 1.535-2(a)(1), Income Tax Regs., in the process of reaching its holding. The factual predicates for the taxpayer in Rutter Rex and petitioner are substantially identical.13 11 The word “unpaid” appears in the last sentence of the pertinent part of sec. 1.535-2(a)(1), Income Tax Regs., as follows: for taxes accrued during the taxable year, regardless of whether the corporation uses an accrual method of accounting, the cash receipts and disbursements method, or any other allowable method of accounting. In computing the amount of taxes accrued, an unpaid tax which is being contested is not considered accrued until the contest is resolved. (Emphasis supplied.) 12 In its opinion, the Court of Appeals acknowledged that the income tax deficiency remained in controversy, even though payment had been proffered. Accordingly, the Court was aware that, ultimately, the taxpayer’s accumulation might not have been subjected to the contested tax deficiency. 13 The taxpayer in Rutter Rex petitioned this Court to contest income and accumulated earning tax deficiencies determined by the Commissioner. After the filing of the petition and this Court’s opinion as to the amount of the income tax deficiency, but prior to the final computation of the accumulated earning tax and the entry of a decision, the taxpayer “apparently offered to pay” the contested income tax deficiencies. See Rutter Rex, 853 F.2d at 1295. We surmise from the quoted language that the deficiency under consideration in Rutter Rex had not been assessed. Likewise, in the case we consider, (continued...)Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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