Olympic Foundry Company, a Washington Corporation, Plaintiff-appellee, v. United States of America, Defendant-appellant, 493 F.2d 1247 (9th Cir. 1974)

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US Court of Appeals for the Ninth Circuit - 493 F.2d 1247 (9th Cir. 1974) Jan. 29, 1974

Scott P. Carmpton, Asst. Atty. Gen., Tax Div., Darrell D. Hallett, Trial Atty., Meyer Rothwacks, Thomas L. Stapleton, Richard Farber, U.S. Dept. of Justice, Tax Div., Washington, D.C., Charles W. Billinghurst, Asst. U.S. Atty., Stan Pitkin, U.S. Atty., Tacoma, Wash., for defendant-appellant.

Gerald R. Hergert, of Trethewey & Brink, Seattle, Wash., for plaintiff-appellee.


Before CHAMBERS and SNEED, Circuit Judges, and BURNS,1  District Judge.


The Government seeks to reverse the District Court's holding that where in a preceding year the alternative method of computing corporate income tax provided in Int.Rev.Code of 1954, 1201 is utilized, the excess of the taxpayer's net operating loss deduction carried back from a later year over its ordinary income in such preceding year may be carried forward to succeeding years under Int.Rev.Code of 1954, 172, even though the amount of the net operating loss deduction in said preceding year is less than the sum of the total of taxpayer's ordinary and capital gain income for that year.

This issue has been consistently decided against the Government. Chartier Real Estate Co., 52 T.C. 346 (1969), aff'd, 428 F.2d 474 (1st Cir. 1970); Mutual Assurance Society of Virginian Corp., 32 T.C.M. 839 (1973); Sidney Axelrod, 32 T.C.M. 885 (1973); Naegele v. United States, 73-2 U.S.Tax Cas. P9696.

All of the arguments pressed by the Government in the instant case were rejected by these cases. We adopt the position of the First Circuit, the Tax Court and that of the District Court. Accordingly, the judgment is affirmed.


Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation