Opinion
136-22
10-19-2022
LM BASS AGGREGATES, LLC, GH MANAGER, LLC, A PARTNER OTHER THAN THE TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On November 2, 2021, petitioner filed a petition based upon the same notice of final partnership administrative adjustment as forms the basis for this case in Docket No. 29167-21. Subsequently, on January 3, 2022, petitioner filed the petition in this case. On January 28, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground a prior case was commenced upon the same notice of final partnership administrative adjustment as forms the basis for this case. On May 31, 2022, petitioner filed a Notice of No Objection to Motion to Dismiss for Lack of Jurisdiction, in which petitioner states that this case was filed as a protective measure due to concern that the petition filed by the tax matters partner at Docket No. 29167-21 may not have properly invoked this Court's jurisdiction.
Under section 6226(b)(2) and (4), if more than one partnership action case is commenced with respect to a partnership for the same taxable year, the first case commenced goes forward and subsequent cases are dismissed. In addition, section 6226(b)(5) provides that if a notice partner files a petition during the 90-day window for the tax matters partner petition (commonly referred to as a "premature petition"), the premature petition is deemed to be filed on the last day of the 60-day notice partner window.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction on the ground that a timely petition was previously filed with respect to the same notice of final partnership administrative adjustment.