Oren L. Benton - Page 9

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         appropriate if one or more but not all issues in the case are                
         susceptible of summary disposition.  See Rule 121(b); Turner                 
         Broad. Sys., Inc. & Subs. v. Commissioner, 111 T.C. 315, 323-324             
         (1998).  Some aspects of the NOL issues are ripe for disposition             
         by means of partial summary judgment.  However, genuine issues of            
         material fact exist with respect to other aspects of the NOL                 
         issues.                                                                      
         II.  The Controversy--Generally                                              
              In Benton v. Commissioner, 122 T.C. at 365, 370-377, 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, petitioner may use NOLs from the Benton estate            
         with respect to his separate tax years beginning with the year               
         his bankruptcy proceeding commenced, to the extent allowed under             
         section 172 and the regulations.  Benton I did not decide certain            
         factual details pertaining to the amounts or sources of the                  
         losses or to the mechanics of the application of the losses under            
         section 172.  Accordingly, Benton I did not fully resolve the                
         parties’ disputes concerning the existence and amounts of any                
         NOLs from the Benton estate to which petitioner may have                     
         succeeded and which he may have had available for use in his                 
         1995, 1996, and 1997 tax years.  See Schaefer v. Commissioner,               
         T.C. Memo. 1998-163, affd. without published opinion 188 F.3d 514            






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