Petaluma FX Partners, LLC v. Commissioner, 2012 U.S. App. Lexis 4011 (D.C. Cir. Feb. 27, 2012), remanding without published opinion 135 T.C. 581 (2010). We are instructed by the Court of Appeals for the District of Columbia Circuit to determine whether our decision in Tigers Eye Trading, LLC v. Commissioner, 138 T.C. ___ (Feb. 13, 2012), "altered or overruled" our decision in Petaluma FX Partners, LLC v. Commissioner, 135 T.C. 581 (2010) (Petaluma III), on remand from 591 F.3d 649, 656 (D.C. Cir. 2010) (Petaluma II), aff'g in part, rev'g in part and remanding on penalty issues 131 T.C. 84 (2008), and to explain the current status of Petaluma III. Held: Tigers Eye did not expressly or implicitly alter or overrule Petaluma III; rather, Tigers Eye recognized that Petaluma III was rendered: (1) under the strict constraints of the law of the case doctrine and the rule of mandate; and (2) without consideration of Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. __, 131 S. Ct. 704 (2011), and Intermountain Ins. Serv. of Vail, LLC v. Commissioner, 650 F.3d 691 (D.C. Cir. 2011), rev'g and remanding 134 T.C. 211 (2010), supplementing T.C. Memo. 2009-195, vacated and remanded, __ S. Ct. __, 2012 WL 1468531 (Apr. 30, 2012).
However, a court would not have jurisdiction to "make a formal adjustment" to the partner's outside basis. Id. at 42; see also Logan Tr. v. Commissioner, 616 F. App'x. 426, 429 (D.C. Cir. 2015), aff'g in part, rev'g in relevant part Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67 (2012); Petaluma FX Partners, LLC v. Commissioner, 591 F.3d at 654-655. Thompson v. Commissioner, 729 F.3d 869, 872 (8th Cir. 2013), rev'g and remanding 137 T.C. 220 (2011); Jade Trading, LLC v. United States, 598 F.3d 1372, 1380 (Fed. Cir. 2010); Petaluma FX Partners, LLC v. Commissioner, 591 F.3d 649, 655 (D.C. Cir. 2010), aff'g in part, rev'g and remanding in part 131 T.C. 84 (2008); Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 117 (2012), aff'd in part, rev'd in relevant part sub nom.
In prior cases we have described the TEFRA procedures as "distressingly complex and confusing". See, e.g., Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 92 (2012); Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. at 539-540. It can even be complex and confusing to determine whether a partnership is subject to TEFRA.
However, if the election is not made, the partnership is not required to determine the partner's initial outside basis. Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 117 (2012). Accordingly, a partner's outside basis generally would be an affected item. Sec. 6231(a)(3); see Tigers Eye Trading, LLC v. Commissioner, 138 T.C. at 117.
A sham partnership has no identity separate from its owners and is treated as an agent or nominee. Tigers Eye Trading, LLC v. Comm'r , 138 T.C. 67, 96, 99 (2012), aff'd in part, rev'd in part Logan Tr. v. Comm'r , 616 F. App'x 426 (D.C. Cir. 2015). But the transactions of a disregarded partnership still need to be addressed, "to the extent [the reviewing court] ha[s] jurisdiction."
The term “partnership flow-through items,” then, logically means partnership items that flow through to the partnership's ultimate partners. The most obvious partnership flow-through items are items of income or loss because those items ultimately flow through successive partnership tiers and are reported on the tax returns of the partnership's partners. See, e.g., Tigers Eye Trading, LLC v. Comm'r, 138 T.C. 67, 88, 2012 WL 445944 (2012) (“A partnership['s] ... items of income and loss flow through to its partners.”). In contrast, for example, a partnership's distributions or contributions are partnership items, 26 C.F.R. § 301.6231(a)(3)–1(a)(4), that do not flow through to the partners.
In this partnership-level proceeding, the issue is whether the partnership itself was negligent. See Arbitrage Trading v. United States, 108 Fed. Cl. 588, 598, 608 (2013); Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 89-91, 133-34 (2012). Negligence includes the failure "to make a reasonable attempt to comply with the provisions of the internal revenue laws or to exercise ordinary and reasonable care in the preparation of a tax return."
"A partnership item is an item that is (1) required to be taken into account under any provision of subtitle A, governing income taxes, and (2) identified by the Secretary in the regulations as 'more appropriately determined at the partnership level.'" Tigers Eye Trading LLC v. Comm'r, 138 T.C. 67, 98 (2012) (quoting 26 U.S.C. 6231(a)(3)). Partnership items include, among other things, "the partnership aggregate and each partner's share of . . . items of income, gain, loss, deduction, or credit of the partnership."
the tugboat bases were more appropriately determined at the partnership level, and not at a partner level. Respondent relied on our decision in Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 116-19 (2012), aff'd in part, rev'd in part, and remanded sub nom. Logan Tr. v. Commissioner, 616 Fed.Appx. 426 (D.C. Cir. 2015), and argued that American Milling's basis in American Boat was not a partnership item of American Boat.
Moreover, this Court lacks subject matter jurisdiction to determine a partner's outside basis in a partnership-level proceeding. See Woods, 571 U.S. at 42 (holding that outside basis is not a partnership item for purposes of section 6226(f)); see also Logan Tr. v. Commissioner, 616 Fed.Appx. 426, 429 (D.C. Cir. 2015), aff'g in part, rev'g in part, and remanding Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67 (2012).