Anthony J. Kadillak - Page 26

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          petitioner to realize an AMT capital loss of $679,825.  However,            
          pursuant to section 83(b)(1) and section 1.83-2(a), Income Tax              
          Regs., petitioner cannot recognize the $679,825 AMT capital loss.           
               Because petitioner fails to satisfy the requirement under              
          section 1341(a) that the taxpayer is entitled to a deduction                
          under another section of the Code for the loss, we need not                 
          consider whether petitioner satisfies other requirements of                 
          section 1341, e.g., whether petitioner had an unrestricted right            
          in the nonvested Ariba stock in the year he made the section                
          83(b) election.                                                             
          F.   Carryback of AMT Capital Losses                                        
               Petitioner argues he may carry back capital losses pursuant            
          to section 1211 to reduce the amount of his AMTI for 2000 and               
          that he may carry back an AMTNOL to reduce the amount of his AMTI           
          for 2000.  Similar arguments, by the same counsel, have been                
          rejected in Merlo v. Commissioner, 126 T.C. 205 (2006),                     
          Montgomery v. Commissioner, 127 T.C. 43 (2006), and Spitz v.                
          Commissioner, T.C. Memo. 2006-168.  Consistent with these cases,            
          the Court finds petitioner may not carry back his AMT capital               
          losses to reduce his AMTI in 2000, and petitioner may not claim             
          an AMTNOL carryback to reduce his AMTI for 2000.  See Merlo v.              
          Commissioner, supra.                                                        









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