Frank H. and Marla C. Black - Page 36




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          Respondent does not dispute that petitioners elected to                     
          relinquish the carryback periods for 1990 and 1991 and apply the            
          NOLs against income for 1991 and 1992.  Respondent, however,                
          argues that petitioners have failed to show that they incurred              
          any NOL in either 1990 or 1991.  Deductions are a matter of                 
          legislative grace, and petitioners must prove they are entitled             
          to the deductions.  Rule 142(a); New Colonial Ice Co. v.                    
          Helvering, 292 U.S. 435, 440 (1934).                                        
               Petitioners were audited for the taxable years 1987, 1988,             
          and 1989, and later resolved their Tax Court cases6 for those               
          years by agreeing to deficiencies in income tax and related                 
          additions to tax for all 3 years.  Additionally, the settlement             
          establishes that petitioners did not incur any NOLs in any of               
          those years, and that no NOL carryover deduction from any pre-              
          1987 taxable year existed to be carried forward.  Thus,                     
          petitioners’ entitlement to any NOL carryover deduction for                 
          taxable years 1991 and 1992 depends solely on whether they have             
          substantiated both the existence and amount of any NOL for 1990             
          or 1991.                                                                    
               Petitioners argue that their 1990 return shows an NOL of               
          $19,008, and that, by not examining petitioners’ 1990 taxable               
          year, respondent has conceded the NOL and cannot disallow it now.           
          Petitioners’ argument is without merit.  Respondent’s failure to            

               6Docket Nos. 10472-91 and 1615-92.                                     





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