The  Ninth Circuit yesterday affirmed the Tax Court (135 T.C. 573 (2012)) and held that an NOL carryover is not an NOL carryback for purposes of § 56(d)(1)(A)(ii)(I):

Between 2002 and 2009, § 56 of the Internal Revenue
Code provided tax relief by permitting taxpayers subject to
the Alternative Minimum Tax (AMT) to offset up to 100% of
their taxable income with net operating losses (NOLs). To
qualify for this relief, NOLs had to be (1) “carryovers to” the
2001 or 2002 tax years, or (2) “carried back from” the 2001
or 2002 years to a prior tax year. The plain meaning of the
term “carryovers” prevents taxpayers from using NOLs that
are carried back to 2001 or to 2002 from a later tax year to
take advantage of the Relief Rule. Therefore, we affirm the
Tax Court’s assessment of a deficiency, because Metro One
Telecommunications may not take advantage of the Relief
Rule with NOLs it carried back from the 2003 and 2004 tax
years to 2002. 

Metro One Telecommunications, Inc. v. Commisioner, No. 11-70819 (9th Cir. Dec. 18, 2012). (Hat Tip: Bob Kamman.)