Opinion
2573-20
09-07-2021
Laurence K. Fishman, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL FOR LACK OF JURSIDICTION
Albert G. Lauber, Judge
This case is calendared on the Court's October 4, 2021, Los Angeles, California, trial session, to be conducted remotely via Zoomgov. On August 30, 2021, the parties filed a joint Motion to Dismiss for Lack of Jurisdiction. We will grant the parties' Motion.
On November 13, 2019, the Internal Revenue Service (IRS or respondent) issued petitioner a notice of deficiency with respect to his Federal income tax for 2001, determining a deficiency of $782, 979 and an accuracy-related penalty of $313, 192. The notice of deficiency is for "affected items" related to partnership items resolved by this Court in LKF X Investments, LKF X Capital Corp., Tax Matters Partner v. Commissioner, docket No. 6492-06.
Pursuant to section 6229(d), where notice of a final partnership administrative adjustment is issued to a tax matters partner (TMP), the running of the assessment period of limitations is suspended during the proceeding and for one year after our decision becomes final. The time period for filing an appeal from a Tax Court decision is 90 days. Sec. 7483; Fed. R. App. 13(a)(1)(A). If no appeal is filed, our decision becomes final upon expiration of the time allowed for filing a notice of appeal. Sec. 7481. If our decision has been appealed and the case has been remanded for rehearing, our subsequent decision becomes "final in the same manner as though no prior decision of the Tax Court ha[d] been rendered." Sec. 7481(a)(4).
Unless otherwise indicated, all statutory references are to the Internal Revenue Code in effect at all relevant times. We round monetary amounts to the nearest dollar.
We initially entered decision in the case at docket No. 6492-06 on September 4, 2009. The TMP filed a notice of appeal on November 23, 2009. No bond was filed. See sec. 7485(b) (permitting assessment during appeal of a partnership case if no bond is filed). On August 23, 2010, the U.S. Court of Appeals for the District of Columbia Circuit issued a mandate affirming in part, reversing in part, vacating in part, and remanding for further proceedings. The parties resolved the case during the remand phase and, on December 28, 2015, we entered a stipulated decision in docket No. 6492-06.
Because the court of appeals remanded for further proceedings, our December 28, 2015, decision became final 90 days after it was entered, on March 27, 2016. Secs. 7481(a)(4), 7483. Under section 6229(d), the period to assess or issue a notice of deficiency with respect to "affected items" expired one year later, on March 27, 2017. But the IRS did not issue the notice of deficiency that forms the basis for this case until November 13, 2019.
In his answer in this case, respondent acknowledged the time problem but contended that petitioner had not properly complied with the provisions of sec. 301.6229(e)-1T, Temporary Proced. & Admin. Regs., with respect to identifying indirect partners. For that reason, respondent urged that section 6229(e) held the assessment period of limitations open at the time the notice of deficiency was issued. The parties now agree that suspension of the assessment period under section 6229(e) is not applicable to the facts of this case, and hence the notice of deficiency was issued after the period of limitations on assessment had expired.
In consideration of the foregoing, it is
ORDERED that the parties' joint Motion to Dismiss for Lack of Jurisdiction, filed August 30, 2021, is granted, and this case is dismissed for lack of jurisdiction.