Oren L. Benton - Page 13

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         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).                





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