PK Ventures, Inc. and Subsidiaries, et al. - Page 38

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               & Lime, Inc. (Adjustment C) wherein the Respondent                     
               proposes to allow the Petitioners an additional                        
               deduction in 1990 in the amount of $798,490.00 and to                  
               disallow deductions in 1991 and 1992 in the amounts of                 
               $868,812.00 and $615,355.00, respectively.                             
               Subsequent to the Roses’ filing their petition with the                
          Court, the Supreme Court issued its opinion in Gitlitz v.                   
          Commissioner, 531 U.S. 206 (2001).  In Gitlitz v. Commissioner,             
          supra, the Supreme Court held that shareholders of an insolvent             
          S corporation may increase their basis in their interest in the             
          S corporation by their pro rata share of cancellation of                    
          indebtedness (COD) income to the S corporation.  Id. at 212-216.            
          Petitioners filed their trial memorandum with the Court on                  
          February 4, 2004.  In their trial memorandum, petitioners made              
          the following assertion:                                                    
                    The Commissioner has failed to increase Mr. Rose’s                
               basis in Zephyr to account for Rose’s proportionate                    
               share of excluded cancellation of indebtedness income                  
               arising from the Zephyr Bankruptcy.  Mr. Rose’s basis                  
               should be increased by approximately $1,900,000 to                     
               reflect the amount of this Gitlitz adjustment.  * * *                  
          In respondent’s trial memorandum, also filed with the Court on              
          February 4, 2004, respondent claimed that the following issue was           
          unresolved:  “22.  Whether petitioners have sufficient basis to             
          deduct claimed flow-through losses from Zephyr Rock & Lime, Inc.            
          in 1990, 1991, and 1992?”                                                   
               In their posttrial briefs dealing with basis issue,                    
          petitioners contended that the Supreme Court’s holding in Gitlitz           
          v. Commissioner, supra, should allow the Roses to increase their            





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