Case: 14-5037 Document: 17 Page: 1 Filed: 04/16/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BASR PARTNERSHIP AND WILLIAM F.
PETTINATI, SR., TAX MATTERS PARTNER,
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2014-5037
______________________
Appeal from the United States Court of Federal
Claims in No. 1:10-cv-00244-SGB, Judge Susan G.
Braden.
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BASR PARTNERSHIP AND WILLIAM F.
PETTINATI, SR., TAX MATTERS PARTNER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5040
______________________
Case: 14-5037 Document: 17 Page: 2 Filed: 04/16/2014
2 BASR PARTNERSHIP v. US
Appeal from the United States Court of Federal
Claims in No. 1:10-cv-00244-SGB, Judge Susan G.
Braden.
______________________
ON MOTION
______________________
Before PROST, O’MALLEY and TARANTO, Circuit Judge.
TARANTO, Circuit Judge.
ORDER
Before the court is the government’s motion to dismiss
a cross-appeal filed by BASR Partnership et al. (“BASR”).
For the following reasons, we grant the motion.
In October 2000, the Internal Revenue Service (“IRS”)
received BASR’s partnership tax returns for the tax
periods ending June 12, 1999 and December 12, 1999.
Following an audit of those returns, the IRS issued a
Final Partnership Administrative Adjustment (“FPAA”)
in January 2010, requiring BASR to pay an additional
$735,533 in taxes and penalties.
After paying the adjusted taxes, BASF filed the un-
derlying complaint in the Court of Federal Claims seeking
a refund, arguing that the FPAA was untimely under
either 26 U.S.C. § 6229 or 26 U.S.C. § 6501. It won, and,
in doing so, received a judgment that the FPAA was
untimely under § 6501 and “there are no adjustments to
partnership items on accuracy-related penalties for BASR
Partnership’s tax periods ended June 12, 1999, and De-
cember 22, 1999.” The government has appealed, and so
has BASF.
The rules concerning when to file a cross-appeal are
relatively straightforward: “It is only necessary and
appropriate to file a cross-appeal when a party seeks to
enlarge its own rights under the judgment or to lessen the
Case: 14-5037 Document: 17 Page: 3 Filed: 04/16/2014
BASR PARTNERSHIP v. US 3
rights of its adversary under the judgment.” Bailey v.
Dart Container Corp. of Mich.,
292 F.3d 1360, 1362 (Fed.
Cir. 2002). It is improper to file a cross-appeal to merely
raise an alternative ground for affirming the judgment
that is supported by the record. See Jaffke v. Dunham,
352 U.S. 280, 281 (1957).
BASF contends that it filed its cross-appeal to pre-
serve its argument that § 6229 would also have precluded
the IRS from assessing additional taxes. But, this is not a
proper ground for a cross-appeal. The Court of Federal
Claims’ bottom line was that the FPAA adjusting BASF’s
taxes was improper as untimely and could not be en-
forced. Because this argument would merely provide an
alternative ground to support that judgment, the cross-
appeal must be dismissed. BASF, of course, may raise its
argument in its response brief. See, e.g., Datascope Corp.
v. SMEC, Inc.,
879 F.2d 820, 822 n.1 (Fed. Cir. 1989) (an
appellee may assert alternative grounds for affirmance
supported by the record).
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. 2014-5040 is dismissed.
The revised official caption in 2014-5037 is reflected
above.
(2) Each side shall bear its own costs in 2014-5040.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s19
ISSUED AS A MANDATE (as to 2014-5040 only):
April 16, 2014
