Med James, Inc. - Page 20

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               Post-Assessment Determinations of the Amount of the                    
               Threshold Underpayment                                                 
                    Commentators argued that the section 6621(c) rate                 
               should not apply if it is determined after assessment                  
               that the threshold underpayment is less than $100,000.                 
               The section 6621(c) rate does not apply if, as a result                
               of a full or partial abatement of an assessment to                     
               correct an administrative error on the part of the                     
               Service, the taxpayer’s threshold underpayment does not                
               exceed $100,000.  The final regulations also provide                   
               that the section 6621(c) rate does not apply, if, as a                 
               result of a court determination of the taxpayer’s                      
               liability, the threshold underpayment is less than                     
               $100,000.  However, a net operating loss or credit                     
               carryback does not reduce the amount of the threshold                  
               underpayment for an earlier taxable period.  [T.D.                     
               8447, 1992-2 C.B. 313, 315; emphasis added.]                           
               The heading of the paragraph indicates that this portion of            
          the preamble is referring to postassessment determinations that             
          potentially affect the amount of a threshold underpayment.  In              
          such a situation, the preamble states that an NOL does not reduce           
          the amount of an underpayment for an earlier taxable period.  The           
          instant case does not involve a postassessment determination.               
          Rather, at the time of the Court’s decision and the subsequent              
          assessment, the parties were fully aware of the NOL, and                    
          petitioner’s liability for the tax year at issue was computed               
          with allowance for the NOL carryback.                                       
               The regulations do not state that a liability or threshold             
          underpayment is not adjusted to account for an NOL for purposes             
          of determining whether section 6621(c) applies.  Rather, the                
          regulations generally provide that if the liability assessed by             
          respondent or decided by this Court does not exceed $100,000,               





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