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addition to tax for failure to file and addition to tax for
substantial underestimation of estimated tax); Auerbach Shoe Co.
v. Commissioner, 21 T.C. 191, 196 (1953) (denying the use of an
NOL carryback deduction to reduce an addition to tax for fraud),
affd. 216 F.2d 693 (1st Cir. 1954); C.V.L. Corp. v. Commissioner,
17 T.C. 812, 816 (1951) (denying the use of an NOL carryback
deduction to reduce a delinquency penalty); Pusser v.
Commissioner, a Memorandum Opinion of this Court dated December
7, 1951 (denying the use of an NOL carryback deduction to reduce
a negligence penalty). Accordingly, the $10 million conceded by
respondent as available to be carried back to petitioner’s 1995
and 1996 tax years will not result in the reduction or
elimination of petitioner’s section 6662 penalty. See generally
discussion in Blanton Coal Co. v. Commissioner, T.C. Memo. 1984-
397.
Petitioner asserts that the amount of NOLs generated by the
Benton estate to which he succeeded is far greater than the
$10 million respondent conceded. The parties disagree about the
amount of NOLs available to petitioner from the Benton estate.
See Schaefer v. Commissioner, T.C. Memo. 1998-163; Leavell v.
Commissioner, T.C. Memo. 1996-117. These matters involve a
“genuine issue of material fact” for which the use of summary
judgment is inappropriate.
Upon a careful review of the record and analyzing factual
inferences in a manner most favorable to the party opposing
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