Unpublished Dispositionphil Gutter, Petitioner-appellant, v. Commissioner of Internal Revenue, Respondent-appellee, 865 F.2d 258 (6th Cir. 1988)

Before MILBURN and DAVID A. NELSON, Circuit Judges, and RICHARD F. SUHRHEINRICH, District Judge.^* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner initiated this action in the Tax Court to contest the propriety of a notice of income tax deficiency. The sole dispute presented to the Tax Court was whether or not the petitioner was entitled to carry over a deduction for excess charitable contributions made in 1973 to the 1981, 1982, 1983 and 1984 tax years. The Tax Court concluded that pursuant to I.R.C. Sec. 170(d) (1) (A), the deductions were not allowable since they were not taken during the five years succeeding the initial 1973 contribution. Accordingly, the Tax Court entered a judgment assessing taxes and penalties upon the petitioner.

On appeal, petitioner seeks appointment of "amicus" counsel. Upon review, we affirm. I.R.C. Sec. 170(d) (1) (A) clearly provides that excess charitable contribution deductions may be carried over for no more than five years immediately following the year in which the contribution is made. Petitioner's reliance on the alleged ambiguity of IRS Publication 526 is misplaced. The only version of Publication 526 that is quoted in the record tells the taxpayer that if his contributions exceed the limit in the year when made, he "may deduct the excess in each of the five succeeding years until it is used up...." (Emphasis supplied.) This tracks the language of the statute, and does not suggest that any deduction may be taken except in one of "the" five succeeding years. Informal publications do not bind the government in any event, and a taxpayer who relies on them does so at his own peril. See Gehl Co. v. Commissioner, 795 F.2d 1324, 1333 (7th Cir. 1986); CWT Farms, Inc. v. Commissioner, 755 F.2d 790, 803 (11th Cir. 1985), cert. denied, 477 U.S. 903 (1986).

Accordingly, petitioner's motion for appointment of "amicus" counsel is denied and the Tax Court's judgment is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.