Nield and Linda Montgomery - Page 36

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          978-426; Graham v. Commissioner, T.C. Memo. 1995-114; Jones v.              
          Commissioner, T.C. Memo. 1993-358.                                          
               Consistent with Merlo v. Commissioner, supra, we conclude              
          petitioners may not carry back their AMT capital losses to reduce           
          their AMTI in 2000.  See Spitz v. Commissioner, T.C. Memo. 2006-            
          168.                                                                        
          VI.  Whether Petitioners May Carry Back Net Operating Losses and            
          Alternative Tax Net Operating Losses To Reduce Their AMTI for               
          2000                                                                        
               In a further attempt to carry back their AMT capital losses,           
          petitioners assert their AMT capital losses entitle them to an              
          ATNOL deduction under section 56.  This, too, is an argument the            
          Court rejected in Merlo v. Commissioner, supra.                             
               A taxpayer normally may carry back a net operating loss                
          (NOL) to the 2 taxable years preceding the loss, then forward to            
          each of the 20 taxable years following the loss.16  Sec.                    
          172(b)(1)(A).  Section 172(c) defines an NOL as “the excess of              
          the deductions allowed by this chapter over the gross income”, as           
          modified under section 172(d).  In the case of a noncorporate               
          taxpayer, the amount deductible on account of capital losses                
          shall not exceed the amount includable on account of capital                
          gains.  Sec. 172(d)(2)(A); sec. 1.172-3(a)(2), Income Tax Regs.             

               16  In the case of NOLs incurred in 2001 or 2002, sec.                 
          172(b)(1)(H) creates a 5-year carryback.  Petitioners argue they            
          are entitled to relief from the 5-year carryback.  However,                 
          because we conclude infra that petitioners are not entitled to an           
          ATNOL, petitioners’ argument is moot.                                       





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