Oren L. Benton - Page 17

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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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