Edward A. Robinson III and Diana R. Robinson - Page 125




                                        - 99 -                                         
               SWIFT, J., dissenting:  Mainly for the reasons set forth in             
          my prior concurring opinion in Redlark v. Commissioner, 106 T.C.             
          31, 48-49 (1996), revd. and remanded 141 F.3d 936 (9th Cir.                  
          1998), I believe petitioners’ income tax deficiency interest                 
          should be regarded as properly allocable to petitioners’ business            
          under section 163(h)(2)(A) and as deductible under section                   
          163(a).                                                                      
               None of the five Courts of Appeals’ opinions cited by the               
          majority, or the instant majority opinion, persuades me to the               
          contrary.  Within the jurisdictions of the other seven geographic            
          Courts of Appeals, taxpayers still are entitled to rely on our               
          Court-reviewed Redlark opinion, and that is exactly what Mr. and             
          Mrs. Robinson have done.  Lardas v. Commissioner, 99 T.C. 490,               
          495 (1992).                                                                  
               Two separate but related facts in this case are clear and               
          undisputed:  (1) Under the express and clear language of section             
          163(h)(2)(A), if an interest expense is “properly allocable” to a            
          trade or business, the interest expense is deductible; and                   
          (2) the tax adjustments giving rise to petitioners’ 1987 tax                 
          deficiency arose directly from and in connection with                        
          petitioners’ law business.  Accordingly, some portion of the                 
          related interest expense should be allocable to the business and             
          should be deductible.                                                        
               Under respondent’s “temporary” regulation, section 1.163-               
          9T(b)(2)(i)(A), Temporary Income Tax Regs., 52 Fed. Reg. 48409               




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