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the penalty issue.
The NOL carryforward deduction issue before us is identical
to the issue in Beery I. In Beery I, we identified the primary
issue for decision as whether a 1975 NOL could be carried forward
to years after 1980. Beery v. Commissioner, supra. In Beery I,
we held that a net operating loss from 1975 could not be carried
forward for more than 5 years. Our holding in Beery I is equally
applicable here.
Petitioners argue, however, that Beery I is invalid because
this Court entered the decision while the automatic stay
provisions of the Bankruptcy Code were in effect. We disagree.
On March 19, 1998, the U.S. Bankruptcy Court for the District of
New Mexico issued an order granting respondent’s motion for
retroactive relief from the automatic stay, which permitted this
Court to enter its decision in Beery I. The order provided in
pertinent part:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
automatic stay imposed under 11 U.S.C. � 363 is
retroactively modified in favor of the United States of
America (IRS) to permit the United States Tax Court to take
all steps necessary to enter a Decision in Docket No. 26695-
93 and conclude its case and to permit the IRS to assess the
debtor’s additional tax liabilities for the years 1989,
1990, and 1991.
The U.S. Court of Appeals for the Tenth Circuit dismissed Mr.
Beery’s appeal of this order.
Moreover, petitioners’ argument that Beery I is invalid was
previously rejected by this Court in Beery v. Commissioner, T.C.
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