Sunday, January 2, 2011
Like the earlier regulations that clarified the Service’s treatment of contingent obligations vis-`a-vis basis calculations, the promulgation of T.D. 9466 will move the fight over the statute of limitations issue from a debate over the applicability of Colony to a debate over the validity of the regulations. If courts strike down the regulations as invalid, then Colony will resume its prior place as the controlling precedent in overstatement of basis cases, and a multitude of Son of BOSS abusers will likely evade potential tax liability. If courts uphold the regulations, they will effectively encourage more “bootstrapping” and “gamesmanship” by the Government in future litigation. Perhaps the only sure lesson to be learned from the saga of Bakersfield and T.D. 9466 is that, when one party unnecessarily pursues litigation, the result is needless uncertainty for both parties.