William T. and Nicole L. Gladden - Page 9

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          to isolate the factual allocation issue that was settled and to             
          treat it as distinct from the legal issues relating to the water            
          rights that were litigated and that were not settled and each of            
          which involved the same underlying substantive tax adjustment.              
               The decision to be entered in this case on the water rights            
          adjustment will be entered not simply “pursuant to” a settlement,           
          but also “pursuant to” our holdings on the capital asset issues             
          (decided in favor of petitioners and not appealed) and “pursuant            
          to” the Court of Appeals’s holding on the legal allocation issue            
          that was appealed and resolved in favor of petitioners.  In                 
          particular, we note that the appellate litigation and the Court             
          of Appeals for the Ninth Circuit’s holding relating to the legal            
          allocation issue occurred after petitioners’ qualified offer was            
          made to respondent on May 12, 1999.3                                        
               Herein, because legal arguments and issues relating to the             
          water rights adjustment were litigated and decided by a court,              
          not by settlement, the judgment to be entered herein with regard            
          to the water rights adjustment is not to be regarded as issued              
          merely pursuant to a settlement, and petitioners’ qualified offer           
          with regard to the water rights adjustment is not limited by the            


          3    We do not have before us the situation where no court                  
          determinations were made on any issues relating to a substantive            
          tax adjustment after a qualified offer was made and where the               
          pending issues and related tax adjustment were all settled                  
          without any court determinations being obtained after the                   
          qualified offer was made.                                                   





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