                  T.C. Summary Opinion 2004-12



                     UNITED STATES TAX COURT



                  HELEN GUTERMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15780-02S.            Filed February 9, 2004.


     Helen Guterman, pro se.

     Frank J. Jackson, for respondent.



     PAJAK, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   Unless otherwise

indicated, section references are to the Internal Revenue Code in

effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.
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       Respondent determined a deficiency of $4,255 in petitioner’s

1999 Federal income tax.    This Court must decide whether a

deduction allowed under section 216 for real estate taxes paid in

connection with a cooperative housing corporation is an

adjustment for purposes of the alternative minimum tax (AMT).

       This case was submitted fully stipulated pursuant to Rule

122.    All of the facts stipulated are so found.   Petitioner

resided in New York, New York, at the time she filed her

petition.    Section 7491 does not apply because this case involves

a legal issue.

       During taxable year 1999, petitioner was a tenant-

shareholder of a cooperative housing corporation.     In connection

with the cooperative housing corporation, petitioner was entitled

to deduct real estate taxes in the amount of $13,092 as her

proportionate share of such taxes paid by the cooperative.

Petitioner deducted this amount on Schedule A, Itemized

Deductions, as “Co-op Real Estate Taxes” under “Other

Miscellaneous Deductions”.    Petitioner did not include the

$13,092 as an adjustment for taxes on the Form 6251, Alternative

Minimum Tax - Individuals, attached to her return.

       Respondent contends that the amount at issue was improperly

characterized as a miscellaneous deduction but that regardless

where deducted on Schedule A, a deduction allowed under section

216 for real estate taxes paid in connection with a cooperative
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housing corporation is an adjustment for purposes of computing

the AMT.   Thus, respondent recalculated and increased

petitioner’s AMT in the amount of $4,255.

     Section 216 allows a tenant-stockholder to deduct amounts

(not otherwise deductible) paid or accrued to a cooperative

housing corporation within the taxable year, to the extent that

such amounts represent the tenant-stockholder’s proportionate

share of the real estate taxes allowable as a deduction to the

corporation under section 164.     Sec. 216(a)(1); sec. 1.216-

1(a)(1), Income Tax Regs.    Section 164 allows a deduction for

real property taxes paid or accrued within the taxable year.

Sec. 164(a)(1); sec. 1.164-1(a)(1), Income Tax Regs.

     Section 55 imposes an alternative minimum tax (AMT) on

taxpayers, in addition to any other income tax imposed.     An

individual’s AMT is determined by a recomputation of the

individual’s taxable income, which results in a new tax base, the

AMT income.    Sec. 55(b)(2).   In determining the AMT income,

certain adjustments are required and no deduction is allowed for

any miscellaneous itemized deduction (as defined in section

67(b)), or for any taxes described in section 164(1), (2), or

(3), except for a non-pertinent exception.     Sec. 56(b)(1)(A).

     We have held previously that the text of the AMT statute is

unambiguous.    Klaassen v. Commissioner, T.C. Memo. 1998-241,

affd. without published opinion 182 F.3d 932 (10th Cir. 1999).
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It is clear from section 56(b)(1)(A)(ii) that the deduction

allowed for real estate taxes paid is an adjustment for purposes

of calculating AMT income.   Section 216(a)(1) incorporates by

reference section 164, and section 164 is specifically enumerated

as an adjustment under section 56(b)(1)(A)(ii).    Accordingly, we

sustain respondent’s determination.

     Petitioner also contends that she was entitled to claim the

deduction allowed under section 216 as a miscellaneous deduction.

Section 67(b)(2) and (12), respectively, exclude from

miscellaneous itemized deductions “the deduction under section

164 (relating to taxes)” and “the deduction under section 216

(relating to deductions in connection with cooperative housing

corporations).”   Because section 67(b)(12) specifically excludes

any section 216 deduction from miscellaneous itemized deductions,

petitioner improperly characterized that deduction as a

miscellaneous deduction.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                           Decision will be entered

                                      for respondent.
