                  T.C. Summary Opinion 2009-15



                      UNITED STATES TAX COURT



     HOWARD CARY MORRIS AND VICKY L. MORRIS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10416-07S.             Filed January 28, 2009.



     Howard Cary Morris, pro se.

     John R. Bampfield, for respondent.



     KROUPA, Judge:   This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect at the time the petition was filed.   Pursuant to section

7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent

for any other case.




     1
      All section references are to the Internal Revenue Code for
the taxable year at issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                -2-

     Respondent determined a $1,174 deficiency in petitioners’

Federal income tax for 2004, and petitioners timely filed a

petition with this Court.   After concessions,2 the only issue

remaining is whether petitioners may offset their realized

long-term capital gains by negative taxable income3 before

offsetting such gains by long-term capital loss carryover.     We

hold they may not.

                            Background
     This case was submitted fully stipulated under Rule 122.

The stipulation of facts, the supplemental stipulation of facts,

the stipulation of settled issues, and the accompanying exhibits

are incorporated by this reference.   Petitioners resided in

Tennessee at the time they filed the petition.

     Petitioners filed a joint Federal income tax return for 2004

and attached a handwritten letter stating they found the Schedule

D, Capital Gains and Losses, too complicated to complete.

Petitioner husband mailed respondent a handwritten computation

and a letter after receiving the deficiency notice.   Petitioners

claimed a $23,000 net long-term capital loss in 2002, which

petitioners carried over to both 2003 and 2004.   The parties

disagree about how the long-term capital loss carryover from 2003

to 2004 is calculated.

     2
      The parties settled issues involving unreported capital
gains in 2004, some of which were not taxable, and associated
early withdrawal additional taxes under sec. 72(t).
     3
      Negative taxable income, as used in this opinion, means
taxable income that is less than zero, without including capital
gains and/or losses in the computation.
                                  -3-

     The parties stipulated that, if petitioners’ position is

correct, then the amount of long-term capital loss carryover to

2004 is $9,629.   This would reduce their 2004 net long-term

capital gain to zero and result in a $651 deficiency for 2004.4

If we find for respondent, however, the amount of long-term

capital loss carryover is $5,807, reducing their net long-term

capital gain to $953 and resulting in a $698 deficiency.

                            Discussion

     We decide whether petitioners may offset their realized

long-term capital gains by negative taxable income5 before

offsetting such gains with long-term capital loss carryover.

Petitioners contend this method of computation reflects Congress’

intent that the use of capital loss carryovers in a bad year

should be delayed to offset capital gains in a good year.    We

disagree with petitioners given the clear language of the

applicable statutes.

     We begin with the burden of proof.   Where, as here, the key

facts are fully stipulated and we are faced with a question of

law, our holding does not depend on the burden of proof we impose

or standard of review we apply.    We must reject erroneous views

of the law.   See Kendricks v. Commissioner, 124 T.C. 69, 75


     4
      In addition, petitioners would have a long-term capital
loss carryover from 2004 to 2005.
     5
      Petitioners’ taxable income for 2003 was negative $3,822
without taking into account their capital gains and losses.
Petitioners reported $20,486 of adjusted gross income in 2003,
excluding their capital gains. They claimed $18,208 of itemized
deductions and two personal exemptions totaling $6,100.
                                  -4-

(2005) (and the cases cited thereat); McCorkle v. Commissioner,

124 T.C. 56, 63 (2005).

     We now turn to the proper method for determining long-term

capital loss carryover.     Petitioners argue that they should be

allowed to deduct negative taxable income from long-term capital

gain and preserve long-term capital loss carryover for the

following year.   They argue that section 1(h)(1) “basically” says

the capital gains rules do not apply if the resulting tax would

be greater than if all or part of the capital gains had been

treated as ordinary income.     They further argue that their income

tax for 2003 was zero and the only way they could determine

whether the tax would be lower is to see if they would pay more

or less tax in 2004.    We disagree with their interpretation.

Instead we hold for respondent because of the clear statutory

language governing capital losses.

     First and foremost, the capital gains tax rates are limited

to certain situations and do not affect the calculation of a

capital loss carryover.     Sec. 1(h)(1).   Petitioners’ reliance on

this section is misplaced.     Further, a specific statute controls

over a general statute in a situation where two sections might

arguably apply.   Spring City Foundry Co. v. Commissioner, 292

U.S. 182, 189 (1934).    Petitioners’ position contradicts the

specific statutes governing the interaction between taxable

income and capital losses.

     Taxable income is defined as gross income less allowable

deductions.   Sec. 63(a).    It is well settled that tax deductions
                                  -5-

are a matter of legislative grace, and taxpayers must show that

they come squarely within the terms of the law conferring the

benefit sought.    Rule 142(a); INDOPCO, Inc. v. Commissioner, 503

U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S.

435, 440 (1934).    A loss from the sale or exchange of a capital

asset is allowed as a deduction only to the extent permitted in

sections 1211 and 1212.    Sec. 165(a), (f).   Consequently, a

capital loss can affect taxable income in limited circumstances.

Negative taxable income does not determine capital losses.

     Capital losses for noncorporate taxpayers are deductible

only to the extent of capital gains plus $3,000.6    Sec. 1211.

When capital losses exceed capital gains by more than $3,000, the

excess may be carried over to later taxable years to reduce

capital gains or a nominal amount of ordinary income.     Sec.

1212(b).

     A long-term capital gain is the gain from the sale of a

capital asset held for longer than a year.     Sec. 1222(3).

Conversely, a long-term capital loss is the loss from the sale of

a capital asset held for longer than a year.     Sec. 1222(4).    A

net long-term capital loss is the excess of long-term capital

losses minus long-term capital gains for a taxable year.       Sec.

1222(8).    Petitioners had a $23,000 net long-term capital loss in

2002.    This amount was carried over to 2003 as a long-term

capital loss.     See sec. 1212(b).

     6
      Capital losses are allowed in full where an individual
taxpayer’s capital losses exceed capital gains by less than
$3,000. Sec. 1211(b)(2).
                                 -6-

     Petitioners realized long-term capital gains of $20,842 and

incurred long-term capital losses of $3,649 in 2003.     Sec.

1222(3) and (4).    Accordingly petitioners’ long-term capital

gains exceeded the amount of actually realized long-term capital

losses by $17,193 that year.    All long-term capital gains and

losses must be incorporated, however, to calculate petitioners’

net long-term capital loss for 2003.     See sec. 1222(8).

Consequently, petitioners’ net long-term capital loss for 2003 is

$5,807 ($3,649, 2003 long-term capital loss + $23,000, net long-

term capital loss carryover - $20,842, 2003 long-term capital

gain).

     Petitioners may carry over their net long-term capital loss

minus any short-term capital gain from 2003 to 2004.     Sec.

1212(b)(1)(B).    Petitioners had no short-term capital gain in

2003.    Accordingly, we find the amount of long-term capital loss

carryover into 2004 is $5,807 and the resulting deficiency for

2004 is $698.    This is consistent with the parties’ stipulation

if we hold for respondent, and we do.

     To reflect the foregoing and the concessions of the parties,


                                           Decision will be entered

                                       under Rule 155.
