                    T.C. Summary Opinion 2003-160



                       UNITED STATES TAX COURT



         RICHARD GORKES, JR. AND SUSAN GORKES, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15415-02S.               Filed October 31, 2003.


     Richard Gorkes, Jr. and Susan Gorkes, pro sese.

     Brianna Basaraba, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1    The decision to

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

should not be cited as authority.


     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
taxable years in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 2 -

     Respondent determined deficiencies in petitioners’ Federal

income taxes for the taxable years 1999, 2000, and 2001 in the

amounts of $3,961, $6,583, and $9,715 respectively.2

     After concessions by the parties, the sole issue for

decision is whether petitioners are entitled to investment

interest expense deductions for the taxable years 1999, 2000, and

2001 in excess of the amounts allowed by respondent.      We hold

that they are not.

Background

     Some of the facts have been stipulated, and they are so

found.   Petitioners resided in Lilburn, Georgia, at the time that

their petition was filed with the Court.

     Petitioners timely filed their Form 1040, U.S. Individual

Income Tax Return, for the taxable year 1999.   Petitioners

attached to their return Schedule A, Itemized Deductions, and

claimed an investment interest expense deduction of $31,215.

Petitioners calculated this amount on an attached Form 4952,

Investment Interest Expense Deduction, as shown below:




     2
         All numbers are rounded to the nearest dollar.
                                   - 3 -



     Part I. Total Investment Interest Expense
     Line 1. Investment interest expense
        paid or accrued in 1999                               $63,807
     Line 2. Disallowed investment interest
        expense from 1998 Form 4952, line 7                    ---
     Line 3. Total investment interest expense                63,807

     Part II. Net Investment Income
     Line 4a. Gross income from property held for
        investment (excluding any net gain from the
        disposition of property held for investment)           31,215
     Line 4b. Net gain from the disposition
        of property held for investment             $   ---
     Line 4c. Net capital gain from the
        disposition of property held for
        investment                                      ---
     Line 4d. Subtract line 4c from line 4b                     ---
     Line 4e. Enter all or part of the amount
        on line 4c that you elect to include
        in investment income                                    ---
     Line 4f. Investment Income.
        Add lines 4a, 4d, and 4e.                             31,215
     Line 5. Investment expenses                                ---
     Line 6. Net investment income.
        Subtract line 5 from line 4f.                         31,215

     Part III. Investment Interest Expense Deduction
     Line 7. Disallowed investment interest
        expense to be carried forward to 2000.
        Subtract line 6 from line 3.                          32,592
     Line 8. Investment interest expense deduction.
        Enter the smaller of line 3 or 6.                     31,215


     Petitioners timely filed their Form 1040 for the taxable

year 2000.   Petitioners attached to their return Schedule A and

claimed an investment interest expense deduction of $43,271.

Petitioners calculated this amount on an attached Form 4952 as

shown below:
                                    - 4 -



      Part I. Total Investment Interest Expense
      Line 1. Investment interest expense
         paid or accrued in 2000                               $92,036
      Line 2. Disallowed investment interest
                                                                 1
         expense from 1998 Form 4952, line 7                      ---
      Line 3. Total investment interest expense                 92,036

      Part II. Net Investment Income
      Line 4a. Gross income from property held for
         investment (excluding any net gain from the
         disposition of property held for investment)           43,271
      Line 4b. Net gain from the disposition
         of property held for investment             $   ---
      Line 4c. Net capital gain from the
         disposition of property held for
         investment                                      ---
      Line 4d. Subtract line 4c from line 4b                         ---
      Line 4e. Enter all or part of the amount
         on line 4c that you elect to include
         in investment income                                        ---
      Line 4f. Investment Income.
         Add lines 4a, 4d, and 4e.                              43,271
      Line 5. Investment expenses                                 ---
      Line 6. Net investment income.
         Subtract line 5 from line 4f.                          43,271

      Part III. Investment Interest Expense Deduction
      Line 7. Disallowed investment interest
         expense to be carried forward to 2001.
         Subtract line 6 from line 3.                           48,765
      Line 8. Investment interest expense deduction.
         Enter the smaller of line 3 or 6.                      43,271
      1
        Petitioners did not carry forward the disallowed investment interest
expense of $32,592 from 1999.

      Petitioners timely filed their Form 1040 for the taxable

year 2001.    Petitioners attached to their return Schedule A and

claimed an investment interest expense deduction of $42,039.

Petitioners calculated this amount on an attached Form 4952 as

shown below:
                                   - 5 -



     Part I. Total Investment Interest Expense
     Line 1. Investment interest expense
        paid or accrued in 2001                              $2,779
     Line 2. Disallowed investment interest
        expense from 2000 Form 4952, line 7                  48,765
     Line 3. Total investment interest expense               51,544

     Part II. Net Investment Income
     Line 4a. Gross income from property held for
        investment (excluding any net gain from the
        disposition of property held for investment)         42,039
     Line 4b. Net gain from the disposition
        of property held for investment             $ ---
     Line 4c. Net capital gain from the
        disposition of property held for
        investment                                     ---
     Line 4d. Subtract line 4c from line 4b                    ---
     Line 4e. Enter the amount from line 4c
        that you elect to include in investment income         ---
     Line 4f. Investment Income.
        Add lines 4a, 4d, and 4e.                            42,039
     Line 5. Investment expenses                               ---
     Line 6. Net investment income.
        Subtract line 5 from line 4f.                        42,039

     Part III. Investment Interest Expense Deduction
     Line 7. Disallowed investment interest
        expense to be carried forward to 2002.
        Subtract line 6 from line 3.                          9,505
     Line 8. Investment interest expense deduction.
        Enter the smaller of line 3 or 6.                    42,039

     Petitioners attached a Schedule D, Capital Gains and Losses,

to their tax return for each taxable year at issue.          Petitioners

reported total net capital losses for each taxable year as

follows:
                                         - 6 -



                                            1999           2000            2001
Net short-term capital gain or (loss)1    ($27,672)    ($1,781,652)    ($2,109,359)
Net long-term capital gain or (loss)2       (9,825)         (2,609)       (107,733)
Total net capital loss3                    (37,497)     (1,784,261)     (2,217,092)
  1
     The net short-term capital loss for each taxable year included short-term
carryover losses to 1999, 2000, and 2001 of $111,114, $27,672, and $1,781,652,
respectively.
  2
     The net long-term capital loss for each taxable year included long-term
carryover losses to 1999, 2000, and 2001 of $21,391, $9,825, and $2,609,
respectively.
  3
    For each taxable year, petitioners deducted the maximum of $3,000 of their
overall capital losses against ordinary income on their Form 1040, Line 13 (Capital
gain or (loss)). See sec. 1211(b).

      In the notice of deficiency, respondent disallowed a portion

of petitioners’ investment interest expense deductions for 1999,

2000, and 2001 in the amounts of $26,076, $38,784, and $49,483,

respectively.3      Respondent contends that petitioners’ “gross

income from property held for investment” for 1999, 2000, and

2001 was $5,139, $4,487, and $453, respectively.4                 Respondent

also argues that because petitioners had a total net capital loss

in each of the taxable years at issue, petitioners had zero “net

gain from the disposition of property held for investment” for

purposes of determining their “net investment income” for each

taxable year.5




      3
        Respondent concedes that the disallowed portion of
investment interest expense deduction for 2001 erroneously
includes otherwise deductible mortgage interest.
      4
        Petitioners concede these amounts of “gross income from
property held for investment” for each taxable year at issue.
      5
        Respondent also concedes the amount of investment
interest expenses claimed by petitioners for each taxable year at
issue.
                               - 7 -

     Petitioners contend that for purposes of determining the

“net investment income” for each taxable year, “net gain from the

disposition of property held for investment” includes only their

items of capital gain.6   Specifically, petitioners argue that

their capital losses and capital loss carryovers are not included

in the calculation of “net gain from the disposition of property

held for investment”.

Discussion7

     The parties do not dispute petitioners’ entitlement to an

investment interest expense deduction under section 163(a), but

the parties do dispute the calculation of that deduction.    The

main issue of contention between the parties is whether the term

“investment income”, as defined by section 163(d)(4)(B), includes

petitioners’ capital losses and capital loss carryovers for

purposes of calculating the limitation on the investment interest

expense deduction.

     In resolving this issue, we rely on section 163(d) and its

underlying framework and legislative history.




     6
        Petitioners contend that   they failed to properly include
their capital gains for purposes   of calculating the “net gain
from the disposition of property   held for investment” on their
Forms 4952 for each taxable year   at issue.
     7
        We decide the issue in this case without regard to the
burden of proof. See sec. 7491; Rule 142(a); Higbee v.
Commissioner, 116 T.C. 438 (2001).
                                - 8 -

     A.   Statutory Framework

     The starting point for the interpretation of a statute is

the language itself.    Consumer Prod. Safety Comm. v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980); see also United States

v. Bryant, 671 F.2d 450, 453 (11th Cir. 1982); Warbelow’s Air

Ventures, Inc. v. Commissioner, 118 T.C. 579, 583 (2002).       We

interpret the statute with reference to the legislative history

primarily to learn the purpose of the statute and to resolve any

ambiguity in the words contained in the text.     Allen v.

Commissioner, 118 T.C. 1, 7 (2002) (and cases cited therein); see

also City of New York v. Commissioner, 103 T.C. 481, 489 (1994),

affd. 70 F.3d 142 (D.C. Cir. 1995).     Moreover, even where the

statutory language appears clear, we may seek out any reliable

evidence as to legislative purpose.     City of New York v.

Commissioner, supra.

           1.   Section 163

     As a general rule, section 163(a) allows a deduction for all

interest paid or accrued within the taxable year on indebtedness.

In the case of an individual, however, section 163(d) limits the

amount of the investment interest expense deduction to the

taxpayer’s net investment income for the taxable year.8       In other

words, the higher the taxpayer’s net investment income, the more


     8
        The Tax Reform Act of 1969, Pub. L. 91-172, sec. 221(a),
83 Stat. 574, originally enacted sec. 163(d), effective for
taxable years beginning after Dec. 31, 1971.
                               - 9 -

investment interest expense the taxpayer is allowed to deduct for

the taxable year.   Furthermore, section 163(d)(2) allows the

taxpayer to carryforward any investment interest expense

disallowed under the general limitation for the taxable year and

deduct it as investment interest expense paid or accrued in the

succeeding taxable year to the extent that the taxpayer has net

investment income in that year.

     Section 163(d)(4)(A) defines net investment income as the

excess of investment income over investment expense.   Section

163(d)(4)(B),9 in turn, defines investment income as follows:

          (B) Investment Income.--The term “investment
     income” means the sum of–-

               (i) gross income from property held for
          investment (other than any gain taken into
          account under clause (ii)(I)),

               (ii) the excess (if any) of–-

                    (I) the net gain attributable
               to the disposition of property held
               for investment, over

                    (II) the net capital gain
               determined by only taking into
               account gains and losses from
               dispositions of property held for
               investment, plus

               (iii) so much of the net capital gain
          referred to in clause (ii)(II) (or, if
          lesser, the net gain referred to in clause


     9
        The Omnibus Budget Reconciliation Act of 1993, Pub. L.
103-66, sec. 13206(d)(1), 107 Stat. 467, amended sec.
163(d)(4)(B) effective for taxable years beginning after Dec. 31,
1992.
                               - 10 -

          (ii)(I)) as the taxpayer elects to take into
          account under this clause. [Emphasis added.]

At issue in the instant case is the calculation of section

163(d)(4)(B)(ii)(I).   To that end, the meaning of the term “net

gain” is integral to our analysis.

          2.   Net Gain

     Neither section 163, the regulations, the case law, nor the

statute’s legislative history defines the term “net gain”.    If a

term is used in the Internal Revenue Code (I.R.C.) without

definition and the legislative history fails to provide any

insight or guidance as to the appropriate definition, we use the

ordinary and common usage of the term in applying that provision.

Texaco Inc. & Subs. v. Commissioner, 101 T.C. 571, 575 (1993),

affd. 98 F.3d 825 (5th Cir. 1996); see Commissioner v. Brown, 380

U.S. 563, 570-571 (1965); Crane v. Commissioner, 331 U.S. 1, 6-7

(1947); Rome I, Ltd. v. Commissioner, 96 T.C. 697, 704 (1991);

Union Pac. Corp. v. Commissioner, 91 T.C. 32, 38-40 (1988); First

Sav. & Loan Association v. Commissioner, 40 T.C. 474, 482 (1963).

We look, therefore, to the ordinary and common usage of the term

“net gain” in applying the statute.

     Neither Black’s Law Dictionary, 957 (7th ed. 1999) nor

Webster’s Third New International Dictionary (1993) specifically

defines the term “net gain”.   However, the ordinary and common

usage of the term “net gain” connotes the pecuniary gain

remaining after offsetting gains against losses.   Presumably, a
                                - 11 -

prerequisite to the existence of net gain is that the taxpayer’s

gains exceed the taxpayer’s losses.

     Black’s Law Dictionary (7th ed. 1999) defines the term “net

loss” as “The excess of all expenses and losses over all revenues

and gains.”     By analogy, the natural, ordinary, and familiar

meaning of the term “net gain” is the excess of all gains over

all losses.10

     As is relevant herein, the terms “gains” and “losses”

include short-term and long-term capital gains and short-term and

long-term capital losses, respectively.     For purposes of

determining “net short-term capital gain”, the prior year’s

short-term capital loss that is carried forward to the current

taxable year under section 1212(b)(1)(A) is treated as a short-

term capital loss for such taxable year.11    Sec. 1.1222-1(b)(1),

Income Tax Regs.    Likewise, for purposes of determining “net


     10
        See, e.g., similar definitions under sec. 1222(9) that
define “capital gain net income” as “the excess of the gains from
the sales or exchanges of capital assets over the losses from
such sales or exchanges”, and under sec. 1.469-
2T(e)(3)(ii)(E)(3), Temporary Income Tax Regs., 53 Fed. Reg. 5719
(Feb. 25, 1988), that define “net gain” for purposes of that
section as “the amount by which the gains from the sale of all of
the property * * * exceed the losses (if any) from such sale”.
     11
        Sec. 1212(b)(1) provides in pertinent part: “If a
taxpayer other than a corporation has a net capital loss for any
taxable year--(A) the excess of the net short-term capital loss
over the net long-term capital gain for such year shall be a
short-term capital loss in the succeeding taxable year, and (B)
the excess of the net long-term capital loss over the net short-
term capital gain for such year shall be a long-term capital loss
in the succeeding taxable year.”
                               - 12 -

long-term capital gain”, the prior year’s long-term capital loss

that is carried forward to the current taxable year under section

1212(b)(1)(B) is treated as a long-term capital loss for such

taxable year.   Sec. 1.1222-1(b)(2), Income Tax Regs.

Furthermore, the pertinent parts of the regulations provide:

     the portion thereof which is a short-term capital loss
     carryover shall be carried over to the succeeding
     taxable year and treated as a short-term capital loss
     sustained in such succeeding taxable year, and the
     portion thereof which constitutes a long-term capital
     loss carryover shall be carried over to the succeeding
     taxable year and treated as a long-term capital loss
     sustained in such succeeding taxable year. The
     carryovers are included in the succeeding taxable year
     in the determination of the amount of the short-term
     capital loss, the net short-term capital gain or loss,
     the long-term capital loss, and the net long-term
     capital gain or loss in such year, the net capital loss
     in such year, and the capital loss carryovers from such
     year. * * * [Sec. 1.1212-1(b)(1), Income Tax Regs.;
     emphasis added.]

It follows that because short-term capital loss carryovers and

long-term capital loss carryovers are treated as losses in the

current taxable year, they are also losses for purposes of

determining “net gain” in section 163(d)(4)(B)(ii)(I).

     Accordingly, we conclude as a matter of law that the term

“net gain” for purposes of section 163(d)(4)(B)(ii)(I) means the

excess, if any, of total gains over total losses, including

capital loss carryovers, from the disposition of property held

for investment.12


     12
          We note that respondent has adopted this view and has
                                                     (continued...)
                                - 13 -


     B.   Legislative History

     Section 163(d) was enacted to curb the practice of using the

investment interest expense deduction to offset taxable income

(e.g., noninvestment income) in a current taxable year; i.e., to

prevent the “mismatching” of investment income and investment

expenses.13

     As relevant to this case, the Tax Reform Act of 1969 (TRA

1969), Pub. L. 91-172, sec. 221(a), 83 Stat. 574, initially

limited the deduction for investment interest expense to $25,000,

plus the amount of net investment income, plus the amount of

long-term capital gain.   Again as relevant to this case, the TRA

1969 amendment defined investment income as (i) the gross income

from interest and dividends, (ii) the net short-term capital gain

attributable to the disposition of property held for investment,

and (iii) any amount treated under sections 1245 and 1250 as


     12
      (...continued)
utilized this definition on Form 4952, General Instructions, for
Line 4b (“Net gain from the disposition of property held for
investment is the excess, if any, of total gains over total
losses from the disposition of property held for investment.”).
     13
        H. Rept. 91-413, at 72 (1969), 1969-3 C.B. 200, 245,
states in pertinent part:

     Where the taxpayer's investment, however, produces
     little current income, the effect of allowing a current
     deduction for the interest is to produce a mismatching
     of the investment income and related expenses of
     earning that income. In addition, the excess interest,
     in effect, is used by the taxpayer to offset other
     income, such as his salary, from taxation.
                              - 14 -

ordinary income.   See sec. 163(d)(3)(B), I.R.C. 1954, as amended

by TRA 1969.

     In 1976, Congress revised section 163(d) to reduce the use

of this deduction to shelter noninvestment types of income.14

See sec. 209(a) of the Tax Reform Act of 1976 (TRA 1976), Pub. L.

94-455, 90 Stat. 1542.   The definition of investment income

remained unchanged, but the TRA 1976 amendment eliminated any

offset of investment interest expense against long-term capital

gain.     Id.

     In 1986, Congress expanded the scope of the investment

interest expense limitation and altered the calculation of the

limitation by including “any net gain attributable to the

disposition of property held for investment”.   Tax Reform Act of

1986 (TRA 1986), Pub. L. 99-514, sec. 511(a), 100 Stat. 2320; see

H. Conf. Rept. 99-841 (1986), 1986-3 C.B. (Vol. 4) 152, wherein

the conference committee articulated the intent to expand the

definition of investment income “to include the same items as

under * * * [TRA 1976] plus the taxable portion of net gain from

the disposition of investment property.”15   (Emphasis added.)


     14
        See H. Rept. 94-658, at 102, 1976-3 C.B. (Vol. 2) 695,
794; S. Rept. 94-938, at 106, 1976-3 C.B. (Vol. 3) 49, 144; Staff
of Joint Comm. on Taxation, General Explanation of the Tax Reform
Act of 1976, at 103 (J. Comm. Print 1976).
     15
        See also H. Rept. 99-426, at 300 (1986) (“[investment
income] also includes the nondeductible portion of net long-term
capital gain on investment property.”); S. Rept. 99-313, at 805
                                                   (continued...)
                               - 15 -

     C.   Analysis

     Petitioners contend that respondent mischaracterized their

investment income for each taxable year at issue by including

capital losses and capital loss carryovers.   Petitioners argue

that section 163(d)(4)(B)(ii)(I) requires inclusion of only their

capital gains and, furthermore, that “net gain” does not require

inclusion of their capital losses and capital loss carryovers.

     Petitioners’ reading of the statute is at odds with the

plain language of the statute.    Essentially, petitioners attempt

to omit the word “net” from the definition of investment income,

even though the phrase is clearly found in section

163(d)(4)(B)(ii)(I).   If we were to adopt petitioners’ reading of

the statute, we would render meaningless Congress’s explicit

reference in section 163(d)(4)(B)(ii) to the term “net gain”.

(Emphasis added.)    Clearly, Congress did not intend this result,

nor do we adopt it.

     We hold as a matter of law that petitioners’ capital losses

and capital loss carryovers are an integral part of the equation

in calculating investment income under section 163(d)(4)(B).

Were these losses not included, petitioners would receive a


     15
      (...continued)
(1986) (“[investment income] also includes the gain on investment
property.”); Staff of Joint Comm. on Taxation, General
Explanation of the Tax Reform Act of 1986, at 263, 265 (Comm.
Print 1987) (“Investment income includes * * * gain (whether
long-term or short-term) attributable to the disposition of
property held for investment”.).
                              - 16 -

double tax benefit.   Under petitioners’ approach, capital gains

would be offset by capital losses and capital loss carryovers and

not subjected to taxation.   Then, those same capital gains that

escaped taxation would be used to increase investment income and,

simultaneously, the investment interest expense deduction.     This

double tax benefit is clearly not permitted by section 163(d).

     We now turn to petitioner’s investment interest expense

deductions for the taxable years at issue.   Based on the amounts

reported by petitioners on their Schedules D, petitioners had a

total net capital loss in each taxable year at issue.   It

follows, then, that petitioners had zero “net gain” in 1999,

2000, and 2001 for purposes of section 163(d)(4)(B)(ii)(I).

Therefore, petitioners have net investment income and allowable

investment interest expense deductions for the taxable years at

issue as follows:
                                      - 17 -
                                                   1999     2000       2001

Investment interest expense                      $63,807   $92,036     $2,779
Disallowed investment interest expense from
   prior taxable year                               —--     58,668    146,217
Total investment interest expense                 63,807   150,704    148,996

Gross income from property held for investment     5,139     4,487        453
Net gain from the disposition of property held
   for investment                                    ---       ---        ---
Net investment income                              5,139     4,487        453

Disallowed investment interest expense to be
   carried forward to the next taxable year       58,668   146,217    148,543
Investment interest expense deduction              5,139     4,487        453



      D.   Conclusion

      We hold that “net gain”, as that term is used in section

163(d)(4)(B)(ii)(I), requires inclusion of petitioners’ capital

losses and capital loss carryovers for purposes of calculating

the section 163(d)(1) limitation on the investment interest

expense deduction.        We hold further that petitioners’ investment

interest expense deductions for 1999, 2000, and 2001 are limited

to $5,139, $4,487, and $453, respectively.           In view of the

foregoing, we sustain respondent’s determination on the disputed

issue.

      We have considered all of the other arguments made by

petitioners and, to the extent that we have not specifically

addressed them, we find them to be without merit.
                            - 18 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,



                                     Decision will be entered

                                under Rule 155.
