Allan & Judy N. Green - Page 8

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          United States v. Olympic Radio & Television, Inc., supra at 235;            
          Deputy v. Du Pont, 308 U.S. 488, 493 (1940).  Whereas petitioners           
          argue that the composition of the NOLs is not in issue, we                  
          conclude to the contrary.  Respondent indicated both in his trial           
          memorandum and in his opening statement at trial that                       
          petitioners’ substantiation of the existence, amounts, and years            
          of the NOLs underlying the disputed NOL carryovers was in issue.            
          Moreover, petitioners alleged in their petition as to each                  
          subject year that “Petitioners did have a [sic] N.O.L. deduction            
          as set forth on the income tax return for the taxable year, or              
          some greater amount”.  (Emphasis added.)  The fact that                     
          petitioners included in their pleading the phrase “some greater             
          amount” indicates that they contemplated specifically that the              
          Court would redetermine the amount of the NOL deduction for each            
          year.  We also note that petitioners claim to have incurred NOLs            
          in numerous years, two of which are 1981 and 1982, and that we              
          understand petitioners at the least to have acknowledged that               
          part of the disputed NOL carryovers is attributable to 1981 and             
          1982 NOLs.5  In that 1981 and 1982 are both more than 15 years              

          5 Ms. Green testified vaguely that the NOL carryovers                       
          consisted of losses from 1981, 1982, 1983, 1984, and 1986, and              
          that these losses were attributable to “operating losses, the               
          cost of selling goods, the leasehold improvements, [and] the                
          investments.”  Petitioners acknowledged on brief that they                  
          continued to carry over to the subject years NOLs that arose in             
          1982.  Petitioners’ counsel stated at trial that “this case is              
          regarding a net operating loss that started out in 1982".                   

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