Mark Spitz - Page 16

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          (1981); sec. 1.172-3(a)(2), Income Tax Regs.  As a result, excess           
          capital losses are not subject to section 172 and are excluded              
          when computing an NOL under section 172(c).                                 
               For AMT purposes, the ATNOL deduction is applied in lieu of            
          section 172 in determining AMTI.  Sec. 56(a)(4).  An ATNOL                  
          deduction is defined as “the net operating loss deduction                   
          allowable for the taxable year under section 172,” subject to               
          exceptions under section 56(d).  Sec. 56(d).  Thus, an ATNOL is             
          computed under section 172 and then adjusted pursuant to section            
          56(d)(2).  Sec. 56(d)(1)(B)(i).  There is no exception under                
          section 56(d) that modifies section 172(c) or (d) to allow excess           
          capital losses to be used as deductions under section 172(c), or            
          to allow excess capital losses to be carried forward or back                
          under section 172(b).  See Merlo v. Commissioner, supra at 212-             
          213.  Instead, remaining capital losses are governed by a                   
          separate carryover scheme prescribed in section 1212(b), as                 
          described above.                                                            
               Therefore, the Court finds petitioner’s excess AMT capital             
          losses are excluded for purposes of calculating his ATNOL                   
          deduction.  As a result, petitioner cannot carry back his AMT               
          capital losses realized in 2001 and 2002 under sections 56 and              
          172(b).                                                                     









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