Robert J. Merlo - Page 5

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          the Exodus shares on the date of exercise, December 21, 2000,               
          petitioner used the fair market value of the Exodus shares on               
          April 15, 2001, to calculate the excess AMTI.3  Petitioner                  
          reported AMTI of $1,001,776 and tentative minimum tax (TMT) of              
          $251,428.  By subtracting his regular tax from the TMT,                     
          petitioner calculated an AMT of $116,973.  Petitioner did not               
          report an alternative tax net operating loss (ATNOL or AMT NOL)             
          deduction on Form 6251.                                                     
               On November 13, 2003, respondent sent a notice of deficiency           
          to petitioner.  Respondent determined that petitioner was                   
          required to use the fair market value of the Exodus shares on the           
          date of exercise (December 21, 2000) instead of their value on              
          the date reported by petitioner (April 15, 2001) to calculate his           
          AMTI.  As a result, respondent increased petitioner’s AMTI from             
          $1,001,776 to $1,607,166, his AMT from $116,973 to $286,483, and            
          his total tax from $251,428 to $420,938.4  Accordingly,                     

               3  Petitioner used the Apr. 15, 2001, fair market value on             
          the basis of proposed legislation that would have allowed                   
          taxpayers to use the fair market value of shares on Apr. 15,                
          2001, instead of the fair market value on the date of exercise,             
          in calculating the spread between exercise price and fair market            
          value.  See H.R. 2794, 107th Cong., 1st Sess. (2001).  The                  
          proposed legislation was never enacted.                                     
               4  There is a slight discrepancy between the fair market               
          value of the Exodus shares as reported by respondent in the                 
          notice of deficiency ($23.25 per share) and as stipulated by the            
          parties ($23.3125 per share).  As a result, respondent’s                    
          calculations in the notice of deficiency are inconsistent with              
          the facts as stipulated.  For purposes of consistency, we                   
                                                             (continued...)           





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