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Garber Industries v. Commissioner
Citation:
435 F.3d 555 (2006)Facts
Garber Industries Holding Co., Inc. was incorporated in 1982 with Charles Garber owning 68% and his brother Kenneth owning 26% of the stock, with the remainder owned by other family members. The company suffered operating losses from 1983 to 1989 and again in 1992, accumulating over twenty million dollars in NOL carryforwards by the end of 1997. In July 1996, the company underwent a reorganization that shifted ownership percentages, with Kenneth’s share increasing to 65% and Charles’s decreasing to 19%. In April 1998, Kenneth sold his entire 65% stake to Charles, increasing Charles’s ownership to 84%. On its 1998 tax return, Garber Industries deducted an NOL carryover of $808,935. The IRS determined this sale constituted an ownership change under § 382, limiting the allowable NOL deduction to $121,258.
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