Richard Gorkes, Jr. and Susan Gorkes - Page 13

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          long-term capital gain”, the prior year’s long-term capital loss            
          that is carried forward to the current taxable year under section           
          1212(b)(1)(B) is treated as a long-term capital loss for such               
          taxable year.  Sec. 1.1222-1(b)(2), Income Tax Regs.                        
          Furthermore, the pertinent parts of the regulations provide:                
               the portion thereof which is a short-term capital loss                 
               carryover shall be carried over to the succeeding                      
               taxable year and treated as a short-term capital loss                  
               sustained in such succeeding taxable year, and the                     
               portion thereof which constitutes a long-term capital                  
               loss carryover shall be carried over to the succeeding                 
               taxable year and treated as a long-term capital loss                   
               sustained in such succeeding taxable year.  The                        
               carryovers are included in the succeeding taxable year                 
               in the determination of the amount of the short-term                   
               capital loss, the net short-term capital gain or loss,                 
               the long-term capital loss, and the net long-term                      
               capital gain or loss in such year, the net capital loss                
               in such year, and the capital loss carryovers from such                
               year. * * * [Sec. 1.1212-1(b)(1), Income Tax Regs.;                    
               emphasis added.]                                                       
          It follows that because short-term capital loss carryovers and              
          long-term capital loss carryovers are treated as losses in the              
          current taxable year, they are also losses for purposes of                  
          determining “net gain” in section 163(d)(4)(B)(ii)(I).                      
               Accordingly, we conclude as a matter of law that the term              
          “net gain” for purposes of section 163(d)(4)(B)(ii)(I) means the            
          excess, if any, of total gains over total losses, including                 
          capital loss carryovers, from the disposition of property held              
          for investment.12                                                           


               12  We note that respondent has adopted this view and has              
                                                             (continued...)           





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