- 10 - forfeiture” and rendered the stock non-transferable for one year on its own terms, not because of Section 422. No such agreement exists in the present case. When you acquired the stock in early 2000 it was acquired without restriction. The provisions of IRC Section 422 impose no restriction on the sale of stock. They do provide favorable tax treatment if the stock is held for one year. While this might have disadvantaged you for tax purposes had you sold the stock before holding it for a year, it in no way restricted your ability to sell or otherwise dispose of the stock at any point. Your representative also argues that the Service has a “duty of consistency” which requires that it treat the options as subject to * * * [AMT] in 2001, not 2000. In support of that he cites Estate of Hilda Ashman, CA-9, * * * [2000-2] USTC 50,806. In short, that case states that a taxpayer cannot take a position which is to his advantage in one year and then take an opposite position after that year is barred by the statute of limitations. The statutes for both 2000 and 2001 are still open by virtue of your claim for refund. In Orange Securities Corp., CA-5, 42-2 USTC 9735, the Court held that there is a “duty of consistency on both the taxpayer and the Commissioner”. You originally filed your 2000 return and reported the * * * [AMT] for that year. The Service accepted that return. When you filed amended returns for both 2000 and 2001 to shift the * * * [AMT] to the later year the Service accepted the amended return for 2001 but not the one for 2000. Thus you found yourselves assessed very substantial * * * [AMT] for both years for the same underlying exercise of stock options. Your representative argues that since the Service accepted the amended return for 2001 and assessed the * * * [AMT] shown thereon, it must–-to be consistent–-accept the amended return for 2000 and abate the AMT for that year. The Service has not taken inconsistent positions. It has consistently argued that the liability attaches to 2000. Further, the Service has taken the position that the resolution of the inconsistency can be achieved by simply abating the AMT for 2001. This is the position taken by the Revenue Agent in the examination of thePage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 NextLast modified: November 10, 2007