Oren L. Benton - Page 2

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         penalties for the short tax year of February 23 through December             
         31, 1995, and the tax years 1996 and 1997, as follows:                       
                        Accuracy-related                                              
         Addition to tax        penalty                                               
               Year   Deficiency   Sec. 6651(a)(1)       Sec. 6662                    
         19951          $75,771   -                         $15,154                   
         1996     240,565           –                 48,113                          
         1997     249,337        $57,967              46,374                          
         1 Pursuant to sec. 1398(d)(2)(D), petitioner elected to                      
         terminate his tax year as of the bankruptcy commencement date,               
         Feb. 23, 1995.  The deficiency is with respect to the short tax              
         year of Feb. 23 through Dec. 31, 1995.                                       
              All section references are to the Internal Revenue Code in              
         effect for the tax years in issue, and all Rule references are to            
         the Tax Court Rules of Practice and Procedure, unless otherwise              
         indicated.                                                                   
              In a prior opinion, concerning respondent’s motion for                  
         partial summary judgment, we considered certain legal questions              
         that affected petitioner’s ability to apply, on his tax returns,             
         unused net operating losses (NOLs) from his bankruptcy                       
         proceeding.  See Benton v. Commissioner, 122 T.C. 353 (2004)                 
         (Benton I).  Among other things, in Benton I, we held that:                  
         (1) The “termination” of petitioner’s chapter 11 bankruptcy                  
         proceeding, for purposes of section 1398, occurred on August 31,             
         1997, upon confirmation of the plan and discharge of the debtor;             
         and (2) generally, NOLs not used or absorbed by his bankruptcy               
         estate may be applied by petitioner against his income for his               
         tax years in issue, to the extent allowed under section 172 and              





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