- 15 - to the extent such negative income constituted a NOL that was carried back to prior years and for which refunds were paid to the taxpayer. In the Court's view, that was the intent of Congress as reflected in the aforementioned legislative history. Adding back the NOL to the income of an averaging base year in such a situation insures against such a result. The fact that regulations on section 1301 had not been promulgated at the time the 1998 and 1999 returns in this case were filed does not preclude this Court from interpreting the intent of Congress and applying the law as so interpreted. In Occidental Petroleum Corp. v. Commissioner, 82 T.C. 819, 829 (1984), this Court stated: We note, of course, that section 58(h) is phrased in terms of directing the Secretary of the Treasury to prescribe regulations to carry out the stated legislative objective, and that the Secretary, to this day, some 8 years after the effective date of these new provisions, has not yet promulgated any such regulations. Moreover, we note further that he has not even published in the Federal Register any proposed regulations in this respect. However, the failure to promulgate the required regulations can hardly render the new provisions of section 58(h) inoperative. We must therefore do the best we can with these new provisions. Certainly we cannot ignore them. Congress could hardly have intended to give the Treasury the power to defeat the legislatively contemplated operative effect of such provisions merely by failing to discharge the statutorily imposed duty to promulgate the required regulations. As already indicated, we must give effect to these provisions in the absence of regulations * * *Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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