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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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