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Finally, respondent asserts that petitioner bears the burden
of establishing the existence and amounts of NOLs available for
use for his 1995, 1996, and 1997 tax years and that genuine
issues of material fact remain concerning many of those matters.
Respondent does acknowledge, however, that the Appeals officer,
during consideration of the Benton estate’s January 31, 1996,
January 31, 1997, August 31, 1998, and August 31, 1999, tax
years, found that the Benton estate had more than $10 million in
NOLs available to carry over to its post-1999 tax years. In that
regard, respondent concedes that, for purposes of applying this
Court’s Benton I Opinion, and without prejudice to respondent’s
appeal rights in this case, petitioner succeeded to and has
available for use in the tax years before the Court at least $10
million in NOLs. Respondent further acknowledges that applying
the conceded NOLs to petitioner’s 1995, 1996, and 1997 tax years
results in: (1) A reduction to zero of revised taxable income
determined in the notice of deficiency for petitioner’s 1995,
1996, and 1997 tax years; and (2) elimination of the addition to
tax under section 6651(a)(1) and the accuracy-related penalty
under section 6662 determined for petitioner’s 1997 tax year.
Respondent argues that even though the carryback of NOLs
eliminates the 1995 and 1996 income tax deficiencies, the NOLs do
not eliminate petitioner’s liability for the section 6662
accuracy-related penalty for those years. See on this point
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