Opinion
30074-21
02-03-2023
Island Shoals Henry 430, LLC, Zhen Wang, A Partner Other Than the Tax Matters Partner, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Joseph Robert Goeke Judge
On June 30, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction, as supplemented, arguing that the Court lacks jurisdiction because petitioner, as a notice partner, did not file a timely petition under I.R.C. § 6226(b).
On January 25, 2023, petitioner filed an Objection to respondent's Motion. It concedes that the Petition was untimely. However, it objects to the granting of respondent's Motion on multiple grounds including, among others, that (1) the Notice of Final Partnership Administrative Adjustment (FPAA) issued to the tax matters partner is invalid because it is incorrectly addressed, and (2) respondent did not timely mail the FPAA to petitioner as a notice partner as required by I.R.C. § 6223(d)(2). Petitioner has not filed a cross-motion to dismiss, but a decision in its favor on either of the arguments it advances appears to require dismissal. See I.R.C. § 6223(e); Clovis I v. Commissioner, 88 T.C. 980, 982 (1987).
Alternatively, petitioner argues that the deadlines to file a petition in I.R.C. § 6226 are nonjurisdictional and subject to equitable tolling. We understand that we must address this argument only if we decide that the FPAA issued to the tax matter partner was valid and the FPAA was timely mailed to petitioner. Accordingly, we will not address it at this time.
On the basis of the record before us, there are factual disputes regarding whether an error contained in the tax matters partner's address was prejudicial and whether the FPAA was mailed to petitioner.
Accordingly, it is
ORDERED that this case is set for an evidentiary hearing on the Court's Atlanta, Georgia Trial Session commencing on April 17, 2023, at a time and date certain of 2:00 p.m., on Thursday, April 20, 2023, in Room 1136, Russell Federal Building & Courthouse, 75 Ted Turner Dr., S.W., Atlanta, Georgia 30303, on the issues of the address used for the tax matters partner and the actual mailing of the FPAA to petitioner. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, as supplemented, is held in abeyance.
This Order constitutes official notice of the same to the parties herein.