The opinion
Tannenwald, J., concurring: The key to this case lies in determining whether the same item is involved in both the later years and the earlier years. Thus, respondent’s regulations provide that “if the taxpayer deducted an item in an earlier year which is now closed and he successfully contends that the item should be deducted in a later year, then the correction of the effect of the erroneous deduction of that item in the closed year may be made since the taxpayer has taken a position inconsistent with the treatment of such item in such earlier year.” 1 (Emphasis added.) See sec. 1.1311(a)-l(b), Income Tax Regs. Here, as I pointed out in my concurring opinion in the earlier related case, two different items are involved. See 59 T.C. at 523. My reference to the mitigation provisions (secs. 1311-1315) simply indicated the possibility that respondent might have a remedy under these sections but did not conclude that such remedy in fact existed. See 59 T.C. at 525. Interlaced with the same item issue is the coordinate issue under the mitigation provisions as to whether petitioner has maintained the necessary inconsistent position. As I see it, petitioner simply maintained in the prior case that, whatever the proper result in the earlier years, it was entitled to an embezzlement loss in the later year. Cf. Kent Homes, Inc. v. Commissioner, 455 F. 2d 316 (10th Cir. 1972), revg. 55 T.C. 820 (1971).
Forrester, J., agrees with this concurring opinion. I recognize that the statutory provisions use the word “item” only in connection with omissions from gross income and not in connection with a “deduction or credit.” In my opinion, no significance should attach to this dichotomy because it would appear that any “deduction or credit” would necessarily have to involve the same item. Consequently, the use of the word “item” in connection with a “deduction or credit” would have been superfluous.