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is less than at the close of the preceding year. Sec. 42(c)(1),
(d)(1).
Bentley Court argues that its apartment complex buildings or
units failed to qualify as low-income housing units because they
were always occupied by the same types of tenants; i.e.,
predominantly students, and, accordingly, there has been no
“recapture event” triggering a recapture of the previously claimed
low-income housing credits. Following that line of reasoning,
Bentley Court contends that both the number of units in the
apartment complex and the total low-income floor space were zero
for the tax year for which respondent determined that recapture of
the credit should occur and for the preceding taxable year,
producing no difference in the qualified basis between periods and
thus no excess or recapture. Bentley Court argues that respondent
is overreaching or maneuvering by determining deficiencies in open
years and using the recapture provision to circumvent the closure
of years in which a deficiency would or should have been
determined.
Respondent offers a two-part response to Bentley Court’s
position. Initially, respondent contends that Bentley Court has
offered no evidence to show that Bentley Court’s apartment complex
was not a qualified low-income building during the 1990, 1991, and
1992 tax years. Alternatively, respondent argues that Bentley
Court is bound by a duty of consistency not to take inconsistent
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