Estate of Clifford C. Haugen - Page 16

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          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               
               * * *                                                                  







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