Oren L. Benton - Page 10

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         (9th Cir. 1999); Leavell v. Commissioner, T.C. Memo. 1996-117.               
         III.  The Net Operating Losses Available to Petitioner                       
              Petitioner, in his summary judgment motion in Benton I,                 
         contended that he had succeeded to:  (1) Prebankruptcy NOLs in an            
         amount not less than $50 million and (2) NOLs generated by the               
         Benton estate in an amount not less than $100 million.                       
         Petitioner now acknowledges that the alleged $50 million in                  
         prebankruptcy NOLs is unallowable for his 1995, 1996, and 1997               
         tax years under paragraph 8 of the settlement agreement.  The                
         first sentence of paragraph 8 provides that petitioner would not             
         be allowed any net operating losses under section 172 that arose             
         in taxable periods before the bankruptcy petition date which                 
         might be carried forward to any taxable period of the Benton                 
         estate.                                                                      
              Petitioner continues to contend, however, that any NOLs                 
         attributable to the $84 million in suspended passive activity                
         losses are not prebankruptcy NOLs that would be covered under the            
         first sentence of paragraph 8 of the settlement agreement.                   
         According to petitioner, nothing in the settlement agreement                 
         prohibits NOLs generated by the Benton estate, to the extent not             
         used by the Benton estate and to the extent petitioner succeeds              
         to them, from being carried to, and used by him for, his 1995,               
         1996, and 1997 tax years.  He maintains that approximately $80               
         million in NOLs attributable to the $84 million in suspended                 






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