The issue is that the income of a Foreign Corporation, owned by the taxpayer's foreign relative, is being attributed to the US taxpayer for the year 2010.
This foreign Corporation had a large gain from the sale of an asset in 2008, which was recognized in installment payments over three years from 2008 – 2010.
At appeals we discovered that in 2010 this same Foreign Corporation also had losses, which were not reflected in the taxpayer's original return nor scheduled as an adjustment on the form 4549A during the Audit.
One solution is to have the case transferred back to the revenue agent, who is not enamored with our taxpayer.
The Appeals Officer wants to close our appeal with a Form 870 which provides that:
“Your consent will not prevent you from filing a claim for refund (after you have paid the tax) if you later believe you are so entitled.”
The issue here is whether by signing the form 870, the taxpayer has agreed to the amount of income from the foreign Corporation which is attributed to him for 2010 and therefore is foreclosed from filing an amended 2010 Form 1040x to reflect this loss?
The other solution is to close the case at appeals with a statutory notice of deficiency and then file an amended form 1040x to reduce the additional assessed income, generated by the foreign Corporation, by the 2010 loss which was not taken into account during the audit.