L.S. Vines - Page 25

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          $3,000 capital loss limitation.  The taxpayers in Lehrer are the            
          classic example of taxpayers who seek to use the benefit of                 
          hindsight.15  The taxpayers sought retroactively to convert their           
          capital losses into ordinary losses several years later, with               
          continued trading in the interim, in order to escape a deficiency           
          and a section 6662 accuracy-related penalty.  Lehrer stands in              
          marked contrast to the instant case, where petitioner filed his             
          election in the tax year it should have been filed, only a matter           
          of months after the due date under the revenue procedure, with no           
          trading in the interim, and no accuracy-related penalty was                 
          determined.  In sum, we hold that petitioner did not use                    
          hindsight in requesting relief and that he acted reasonably and             
          in good faith.                                                              
               Respondent contends that the interests of the Government are           
          deemed prejudiced pursuant to section 301.9100-3(c)(2), Proced. &           
          Admin. Regs., which provides in pertinent part as follows:                  
               (2) Special rules for accounting method regulatory                     
               elections.-- The interests of the Government are deemed                
               to be prejudiced except in unusual and compelling                      
               circumstances if the accounting method regulatory                      
               election for which relief is requested–                                
                    (i) Is subject to the procedure described in                      
                    �1.4461(e)(3)(i) of this chapter (requiring the                   
                    advance written consent of the Commissioner);                     


               15The taxpayers in Lehrer v. Commissioner, T.C. Memo. 2005-            
          167, did not raise the issue of sec. 9100 relief.  We held that             
          the taxpayers failed to file within the time prescribed by Rev.             
          Proc. 99-17, supra.                                                         





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