- 13 - Blanton Coal Co. v. Commissioner, T.C. Memo. 1984-397, and cases cited therein.3 We agree with petitioner that any NOLs attributable to the $84 million in suspended passive losses are not prebankruptcy NOLs of petitioner. An analysis of the statutes and the parties’ agreement in the bankruptcy proceeding reveals that the net operating losses did not exist before the bankruptcy. To the extent that our statement in Benton I that the NOLs had “arisen before the commencement of the bankruptcy”, Benton v. Commissioner, 122 T.C. at 357, could be interrupted otherwise, it is incorrect.4 The $84 million in suspended passive losses became allowable upon the Benton estate’s transfer of its interest in the passive activities to the liquidating trust. In addition, under paragraph 6 of the parties’ bankruptcy settlement agreement, the $84 million in suspended passive activity losses was a tax 3 As we observed in Blanton Coal Co. v. Commissioner, T.C. Memo. 1984-397, in computing various additions to tax and/or penalties, longstanding caselaw would permit the reduction of additions and penalties by NOLs attributable to carryforward deductions, but not by those attributable to carryback deductions. 4 In Benton I we decided a legal question on the basis of parties’ representations of the underlying facts in their motions for summary judgment. The outcome of the legal question in Benton I did not depend on factual findings made by the Court. In the setting of a motion for summary judgment, the facts are not “found”. The parties’ stated facts are interpreted by the Court in a manner most favorable to the party opposing summary judgment. See Bond v. Commissioner, 100 T.C. 32, 36 (1993).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
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