Home Mutual Insurance Company, Cross v. Commissioner of Internal Revenue, Cross

EN BANC OPINION ON REHEARING

Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, SPRECHER, BAUER, WOOD and CUD-AHY, Circuit Judges.* PER CURIAM.

The sole issue before the full Court is whether a majority of the panel properly *350held that the tax benefit rule1 may not be invoked unless the items sought to be excluded from taxation are asserted to be taxable only by means of the exclusionary aspect of the tax benefit rule. For the reasons given in the majority panel opinion, we hold the tax benefit rule requires use of the inclusionary aspect of the rule before a taxpayer can employ the…