Capital Blue Cross and Subsidiaries - Page 22

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               If petitioner sold an office building on January 1, 1994,              
          for a price equal to the building’s fair market value on                    
          January 1, 1987, petitioner would not realize gain or incur tax             
          on the sale of the building because petitioner would have been              
          allowed to step up the building’s tax basis to its January 1,               
          1987, fair market value.  Under respondent’s interpretation,                
          however, if on January 1, 1994, the building was uninsured and              
          was totally destroyed by fire, and if petitioner claimed a                  
          deduction under section 165 relating to the casualty loss                   
          associated with the fire, petitioner would not be allowed to                
          utilize the January 1, 1987, stepped-up basis in the building               
          because such loss was caused by a fire, not by a sale or                    
          exchange.  This latter result (in which petitioner, as a taxable            
          entity for 1994, would be taxed on the pre-1987 appreciation in             
          the building) would be inconsistent with the overall purpose of             
          TRA 1986 section 1012(c)(3)(A)(ii) to not tax such appreciation.8           
               We conclude that the basis step-up provision of TRA 1986               
          section 1012(c)(3)(A)(ii) applies not just to sale or exchange              

               8  We also note that respondent’s legal position is contrary           
          to one of respondent’s own legal advice memoranda.  In Tech. Adv.           
          Mem. 95-33-003 (Aug. 18, 1995, and not since revoked or                     
          withdrawn), the language of the basis step-up provision of TRA              
          1986 sec. 1012(c)(3)(A)(ii) is construed by respondent as not               
          limited by the “sale or exchange” language of the legislative               
          history and as including an “abandonment” of computer software.             
               Also, in Field Service Advice 2000-01-002 (Jan. 7, 2000),              
          respondent reiterated the same legal interpretation of TRA 1986             
          sec. 1012(c)(3)(A)(ii) and concluded generally that the basis               
          step-up provision was not limited to sale or exchange                       
          transactions.                                                               




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