Nield and Linda Montgomery - Page 37

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          Consequently, the effect of section 172(d)(2)(A) is that net                
          capital losses are excluded from the NOL computation.  See, e.g.,           
          Parekh v. Commissioner, T.C. Memo. 1998-151.  In Merlo v.                   
          Commissioner, supra, we stated in pertinent part:                           
                    For AMT purposes, section 56(a)(4) provides that                  
               an ATNOL deduction shall be allowed in lieu of an NOL                  
               deduction under section 172.  An ATNOL deduction is                    
               defined as the NOL deduction allowable under section                   
               172 and is computed by taking into consideration all                   
               the adjustments to taxable income under sections 56 and                
               58 and all the preference items under section 57 (but                  
               only to the extent that the preference items increased                 
               the NOL for the year for regular tax purposes).  Sec.                  
               56(d)(1).                                                              
                    Petitioner’s net regular capital loss is excluded                 
               from computing his NOL deduction.  See sec. 172(c),                    
               (d)(2)(A); sec. 1.172-3(a)(2), Income Tax Regs.  For                   
               AMT purposes, petitioner’s ATNOL is the same as his                    
               NOL, taking into consideration all the adjustments to                  
               his taxable income under sections 56, 57, and 58.  See                 
               sec. 56(a)(4), (d)(1).  No adjustments under those                     
               sections modify the exclusion of net capital losses                    
               from the NOL computation under section 172(d)(2)(A).                   
               Therefore, petitioner’s AMT capital loss is excluded                   
               for purposes of calculating his ATNOL deduction.  As a                 
               result, petitioner’s AMT capital loss realized in 2001                 
               does not create an ATNOL that can be carried back to                   
               2000 under sections 56 and 172(b).                                     
          Merlo v. Commissioner, supra at 212-213 (fn. ref. omitted).                 
               Consistent with Merlo v. Commissioner, supra, we hold                  
          petitioners may not claim an ATNOL carryback to reduce their AMTI           
          for 2000.  See Spitz v. Commissioner, supra.                                
          VII.  Whether Petitioners Are Liable for a Substantial                      
          Understatement Penalty Under Section 6662(b)(2)                             
               Respondent determined petitioners are liable for a                     







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