Alex and Liset Meruelo v. Commissioner ( 2009 )

132 T.C. No. 18
UNITED STATES TAX COURT
ALEX AND LISET MERUELO, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 624-04. Filed June 9, 2009.
R issued Ps a notice of deficiency (NOD) for 1999
that contained determinations related to an entity
subject to the unified audit and litigation procedures
of the Tax Equity and Fiscal Responsibility Act of 1982
(TEFRA), Pub. L. 97-248, sec. 401, 96 Stat. 648. On
their 1999 Federal income tax return, Ps claimed a
deduction for a $4,538,844 loss that reportedly passed
through to them from a partnership they identified as
M. M was actually P-H’s single-member limited
liability company (LLC) that was a disregarded entity
for Federal tax purposes; the claimed loss actually
stemmed from IV, a five-member (one of whom was P-H)
LLC subject to TEFRA. IV reported on its 1999 return
that it incurred a loss and that $4,538,844 of the loss
passed through to M. IV’s return did not indicate that
M was a single-member LLC, that M was a disregarded
entity, or that P-H (rather than M) was actually IV’s
member. P-H did not file a return for M for 1999, and
R did not audit (or make any adjustments to) IV’s 1999
return during the 3-year period of limitations for
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assessing tax attributable to partnership and affected
items from IV’s 1999 taxable year. R issued the NOD to
Ps shortly before the expiration of the 3-year period
of limitations for assessing tax as to Ps’ 1999 taxable
year, which coincided with the expiration of the 3-year
period of limitations for IV’s 1999 taxable year. The
NOD reflected: (1) Ps’ reporting that M was a
partnership and (2) R’s determination that secs. 465
and 704(d), I.R.C., precluded Ps’ deducting any of the
loss and that Ps were liable for an accuracy-related
penalty under sec. 6662, I.R.C. R learned during this
case that M was not a partnership but was a disregarded
entity. R also learned that Ps’ $4,538,844 claimed
loss was related to IV and related Ps’ claimed loss to
an ongoing grand jury investigation into tax shelters.
Afterwards, R informed the Court that R may still
determine that IV’s 1999 return contained a false or
fraudulent partnership item that would allow R to
assess tax related to the loss after the expiration of
the 3-year period of limitations applicable to IV. Ps
now move the Court to dismiss the case for lack of
jurisdiction, asserting that R issued the NOD
prematurely (i.e., before the completion of
partnership-level proceedings as to IV) because R
neither issued a notice of final partnership
administrative adjustment (FPAA) to IV for 1999 nor
accepted IV’s 1999 return as filed.
Held: R did not issue the NOD prematurely because
R issued the NOD to Ps during Ps’ 3-year period of
limitations, without issuing an FPAA to IV during the
3-year period of limitations applicable to IV.
Held, further, R’s determinations under secs. 465,
704(d), and 6662, I.R.C., implicate affected items that
require determinations at the partner level, and the
Court has jurisdiction to decide this case.
A. Lavar Taylor and Robert S. Horwitz, for petitioners.
Jonathan H. Sloat and Donna F. Herbert, for respondent.
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OPINION
VASQUEZ, Judge: Petitioners move the Court to dismiss this
case for lack of jurisdiction. Petitioners petitioned the Court
to redetermine respondent’s determination of a $1,581,293
deficiency in petitioners’ Federal income tax for 1999 and a
$632,517 accuracy-related penalty under section 6662(h) (or
alternatively a lesser accuracy-related penalty under section
6662(a)).1 Respondent included that determination in a notice of
deficiency (NOD) that reflects respondent’s disallowance of a
$4,538,844 loss that petitioners claimed as a deduction. The
loss stemmed from petitioner Alex Meruelo’s ownership interest in
Meruelo Capital Management, LLC (MCM), his single-member limited
liability company, and in turn MCM’s ownership interest in
Intervest Financial, LLC (Intervest), an entity subject to the
unified audit and litigation procedures of the Tax Equity and
Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, sec.
401, 96 Stat. 648.2 Respondent disallowed the loss because,
1
Section references are to the applicable versions of the
Internal Revenue Code (Code), unless otherwise stated. Some
dollar amounts are rounded to the nearest dollar. We use terms
in this Opinion to decide petitioners’ motion and do not express
any view on the validity of any of the entities or transactions
mentioned. See Soward v. Commissioner, T.C. Memo. 2006-262.
2
The parties agree that MCM is disregarded for Federal tax
purposes because it is a single-member limited liability company
that did not elect to be treated as a corporation. See sec.
301.7701-3(a), Proced. & Admin. Regs.
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inter alia, petitioners failed to establish that the Code did not
limit or disallow any deduction as to the loss. (Respondent has
since clarified that two provisions limiting or disallowing the
loss are sections 465 and 704(d).) Respondent also determined in
the NOD that petitioners were liable for an accuracy-related
penalty under section 6662 with respect to their reporting of the
deduction of the loss.
Petitioners argue that the Court lacks jurisdiction because
the NOD was issued prematurely and is invalid. Such is so,
petitioners argue, because the deficiency and the accuracy-
related penalties are or are attributable to affected items of
Intervest, and respondent as of the time the NOD was issued had
neither issued a notice of final partnership administrative
adjustment (FPAA) to Intervest for 1999 nor accepted Intervest’s
return for 1999 as filed. Even if the NOD was not issued
prematurely, petitioners argue alternatively, the Court lacks
jurisdiction because the affected items set forth in the NOD are
not in fact affected items.
We disagree with petitioners on both points. We hold that
the NOD was not issued prematurely and that the affected items
set forth in the NOD are affected items that require
determinations at the partner level. We hold that we have
jurisdiction, and we will deny petitioners’ motion asserting to
the contrary.
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Background
I. Petitioners
Petitioners are husband and wife. They filed a joint Form
1040, U.S. Individual Income Tax Return, for 1999 on or about
October 16, 2000. They resided in California when they filed
their petition with the Court.
II. MCM
MCM was a limited liability company whose only member was
Alex Meruelo (Mr. Meruelo). During 1999 MCM owned a 31.68-
percent interest in Intervest, a Delaware limited liability
company. MCM did not file a Federal tax return for 1999. For
1999, MCM was (by default) a disregarded entity for Federal tax
purposes because MCM did not file a Form 8832, Entity
Classification Election, electing to be treated as a corporation
for that year.
III. Intervest
A. Identity of Intervest’s Other Members
Intervest had four members in addition to MCM: Ewing
Capital Management, LLC; Markerston Shield, LLC; Manchester
Overseas, LLC; and New Day, S.A. Ewing Capital Management, LLC,
and Markerston Shield, LLC, were Delaware limited liability
companies, and their respective ownership interests in Intervest
were 35.64 percent and 24.75 percent. Manchester Overseas, LLC,
was a Nevis limited liability company, and it owned a
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6.93-percent interest in Intervest. New Day, S.A., was a
Bahamian corporation, and it owned a 1-percent interest in
Intervest.
B. Intervest’s Form 1065 for 1999
Intervest filed a Form 1065, U.S. Partnership Return of
Income, for 1999. The return was filed on October 14, 2000. The
return covered Intervest’s initial taxable year beginning on
December 13 and ending on December 31, 1999.
Intervest’s return for 1999 reported that Intervest incurred
a $14,327,160 ordinary loss from engaging in foreign currency
transactions. Intervest issued MCM a Schedule K-1, Partner’s
Share of Income, Credits, Deductions, etc., for 1999 that
reported an ordinary loss of $4,538,844 as a passthrough item
from Intervest to MCM. Intervest’s return reported that MCM was
a “member” of Intervest. Intervest’s return did not indicate
that MCM was a single-member limited liability company, that MCM
was a disregarded entity, or that Mr. Meruelo (rather than MCM)
was actually Intervest’s member for 1999 for Federal tax
purposes.
IV. Petitioners’ Tax Return
On their Form 1040 for 1999, petitioners claimed the
$4,538,844 loss as a passthrough item from MCM. The return did
not identify Intervest, nor did the return state that Intervest
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was the source of the loss.3 The return reported that MCM was a
partnership. The return did not indicate that MCM was a single-
member limited liability company, that MCM was a disregarded
entity, or that Mr. Meruelo (rather than MCM) was actually
Intervest’s member for 1999 for Federal tax purposes.
V. The NOD
Respondent failed to obtain from petitioners for 1999 a
Form 872-I, Consent to Extend the Time to Assess Tax As Well As
Tax Attributable to Items of a Partnership. On October 10, 2003,
shortly before the expiration of the normal period of limitations
for assessing tax as to petitioners’ 1999 taxable year, which
coincided with the expiration of the normal period of limitations
for assessing tax attributable to partnership and affected items
from Intervest’s 1999 taxable year, respondent issued the NOD to
petitioners.4 The NOD reflected petitioners’ reporting on their
3
Respondent asserts that he first learned that the loss
originated with Intervest when respondent was served with
petitioners’ petition. The petition references that MCM owned an
interest in Intervest.
4
The normal period of limitations on an assessment of
Federal income tax attributable to a partnership item (or to an
affected item) is 3 years after the filing of the taxpayer’s
return, except that the period shall not expire before the date
which is 3 years after the later of the due date of the
partnership return (determined without regard to extensions) or
the date the partnership return was actually filed. See secs.
6229(a), 6501(a); G-5 Inv. Pship. v. Commissioner, 128 T.C. 186,
189-190 (2007); Rhone-Poulenc Surfactants & Specialties, L.P. v.
Commissioner, 114 T.C. 533, 540-551 (2000); see also sec.
6501(b)(1) (providing that a return of tax filed before the last
(continued...)
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1999 tax return that MCM was a partnership and that the
$4,538,844 loss had passed through to them from MCM. The NOD
stated that petitioners were not entitled to deduct the loss and
that they were liable for an accuracy-related penalty under
section 6662. The NOD stated that the only other adjustments to
petitioners’ reported taxable income were computational
adjustments made to petitioners’ itemized deductions pursuant to
section 68(a) and (b).
The NOD stated that respondent disallowed petitioners’
claimed deduction for the loss because they failed to establish
that they had any basis in MCM, that a loss was sustained during
1999 in the amount claimed, that any loss was attributable to
them, or that the claimed loss (or any portion thereof), if
sustained, was allowable as a deduction under the Code. The NOD
stated that any deduction of the loss also was disallowed because
petitioners had failed to establish that any deduction related to
the loss was not limited or disallowed by one or more sections of
the Code, including for example sections 165 and 465. The NOD
stated that a deduction for the loss also was disallowed because
MCM was a sham for tax purposes, and the provisions of chapter 1,
4
(...continued)
day for timely filing shall be considered as filed on that last
day). We sometimes use the term “normal” in this context also to
include any period greater than the referenced periods agreed
upon pursuant to sec. 6501(c)(4) and/or sec. 6229(b).
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subchapter K, including for example sections 705, 722, 732, and
752, could not be used to calculate their basis in MCM.
The NOD stated as to the accuracy-related penalty that
respondent had determined that the 40-percent penalty of section
6662(a), (b)(3), (e), and (h) was proper because petitioners had
an underpayment of tax due to a gross valuation misstatement of
their outside basis in MCM. Alternatively, the NOD stated,
respondent had determined that the 20-percent penalty of section
6662(a), (b)(1), and (c) was proper to the extent that section
6662(h) did not apply because petitioners had an underpayment of
tax due to negligence or disregard of rules and regulations. As
a second alternative, the notice stated, respondent had
determined that the 20-percent penalty of section 6662(a),
(b)(2), and (c) was proper because petitioners had an
underpayment of tax attributable to a substantial understatement
of income tax.
VI. No Audit of Intervest
Respondent has not audited Intervest’s Form 1065 for 1999.
Nor has respondent notified Intervest that respondent is
beginning an audit of Intervest for 1999. Respondent has not
issued an FPAA to Intervest for 1999.
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VII. Respondent’s Motion To Stay Proceedings
On November 12, 2004, respondent responded to petitioners’
motion to dismiss by moving the Court to “stay the proceedings in
this case pending the resolution of a federal criminal
investigation whose progress and outcome may affect the
disposition of this case.” Respondent’s motion stated that
respondent had just recently learned that petitioners’ reported
loss was generated in a tax shelter related to an ongoing grand
jury investigation into tax shelter activities and that the grand
jury investigation could affect or be affected by happenings in
this case. The motion stated that if respondent learned that
petitioner [sic] had, with the intent to evade tax,
signed or participated, directly or indirectly, in the
preparation of a partnership return which includes a
false or fraudulent item, then in the case of partners
participating, any tax imposed by Subtitle A which is
attributable to any partnership item (or affected item)
for the partnership taxable year to which the return
relates may be assessed at any time. I.R.C. §
6229(c)(1)(A).
10. Furthermore, even if petitioners did not sign
or participate directly in the filing of a false or
fraudulent partnership return, the period for assessing
tax attributable to partnership items related to a
false or fraudulent partnership return is six years,
rather than three years, from the date on which the
partnership return was filed. I.R.C. § 6229(c)(1)(B).
In the instant case, because Intervest’s return was
filed on October 14, 2000, the period of limitations
for assessing tax attributable to partnership items
would remain open for purposes of conducting a
partnership-level proceeding.
Respondent also noted in the motion that the Commissioner has a
longstanding policy generally to defer civil assessment and
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collection until the completion of any related criminal
proceeding.5
On November 18, 2004, the Court granted respondent’s motion
and stayed all proceedings in this case. The Court later lifted
the stay to decide petitioners’ motion now before us.
Discussion
I. Jurisdiction
Petitioners move the Court to dismiss this case for lack of
jurisdiction. We begin our analysis with some general tenets of
our jurisdiction. This Court like other Federal courts is a
court of limited jurisdiction. See Evans Publg., Inc. v.
Commissioner, 119 T.C. 242, 245-246 (2002). Whether we have
jurisdiction over the subject matter of a dispute is an issue
that either party may raise at any time. See Charlotte’s Office
Boutique, Inc. v. Commissioner, 121 T.C. 89, 102 (2003), affd.
425 F.3d 1203 (9th Cir. 2005). Here, our jurisdiction rests on
our finding that the NOD issued to petitioners was valid and that
petitioners’ petition to this Court was timely.6 See Domulewicz
5
Neither party asserts, nor does the record establish,
that petitioners were or are under criminal tax investigation for
violation of an internal revenue law related to income tax. See
generally sec. 301.6231(c)-5T, Temporary Proced. & Admin. Regs.,
52 Fed. Reg. 6793 (Mar. 5, 1987) (rules under which the
partnership items of a partner are converted to nonpartnership
items when the partner is under criminal tax investigation).
6
Neither party disputes that the petition would be timely
if the NOD were valid. We find similarly and so conclude without
(continued...)
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v. Commissioner, 129 T.C. 11, 17 (2007); GAF Corp. & Subs. v.
Commissioner, 114 T.C. 519, 521 (2000). Our jurisdiction, once
acquired, continues unimpaired until we enter our ultimate
decision and is unaffected by events that occur after the filing
of the petition. See NT, Inc. v. Commissioner, 126 T.C. 191, 194
n.2 (2006); GAF Corp. & Subs. v. Commissioner, supra at 525.
II. TEFRA in General
We turn to some general tenets involving partnerships.
Partnerships are not subject to Federal income tax. See sec.
701. Partnerships are nevertheless required to file annual
information returns reporting their partners’ distributive shares
of income, gain, loss, deductions, or credits. See sec. 6031;
see also Randell v. United States, 64 F.3d 101, 103 (2d Cir.
1995); Crowell v. Commissioner, 102 T.C. 683, 688-689 (1994).
Partners are required to report their distributive shares of
those items on their personal Federal income tax returns. See
secs. 701, 702, 703, and 704.
Before 1982 the Commissioner and the courts had to adjust
partnership items at the partner level. See Adams v. Johnson,
355 F.3d 1179, 1186-1187 (9th Cir. 2004); Randell v. United
States, supra at 103; Maxwell v. Commissioner, 87 T.C. 783, 787
(1986). Congress enacted the unified audit and litigation
6
(...continued)
further discussion.
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procedures of TEFRA to remove the substantial administrative
burden occasioned by duplicative audits and litigation and to
provide consistent treatment of partnership items among all
partners in the same partnership. See Adams v. Johnson, supra at
1186-1187; Randell v. United States, supra at 103; H. Conf. Rept.
97-760, at 599-600 (1982), 1982-2 C.B. 600, 662-663. The proper
treatment of partnership items at the partnership level is
determined under the TEFRA procedures in a single, unified audit
and judicial proceeding. See Adams v. Johnson, supra at
1186-1187; Randell v. United States, supra at 103; H. Conf. Rept.
97-760, supra at 599-600, 1982-2 C.B. at 662-663.
The term “partnership items” includes any item of income,
gain, loss, deduction, or credit that the Secretary has
determined is more appropriately determined at the partnership
level than at the partner level. See sec. 6231(a)(3); sec.
301.6231(a)(3)-1(a), Proced. & Admin. Regs. The term does not
include an “affected item”, defined by statute as any item to the
extent the item is affected by a partnership item. See sec.
6231(a)(5); Adkison v. Commissioner, 129 T.C. 97, 102 (2007).
Affected items are of two types. The first type is a
computational adjustment made to a partner’s tax liability to
reflect adjustments to partnership items. See sec. 6231(a)(6).
When partnership-level proceedings are complete, the Commissioner
may assess computational adjustments against a partner without
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issuing a notice of deficiency. See secs. 6225(a), 6230(a)(1);
N.C.F. Energy Partners v. Commissioner, 89 T.C. 741, 743-744
(1987).
The second type of affected item requires a partner-level
determination; it is an adjustment to a partner’s tax liability
(other than to reflect a penalty, addition to tax, or additional
amount relating to an adjustment to a partnership item) to
reflect the proper treatment of a partnership item that is
dependent upon factual determinations to be made at the partner
level. See sec. 6230(a)(2)(A)(i); Domulewicz v. Commissioner,
supra at 22-24. The normal deficiency procedures apply to
affected items that require partner-level determinations (other
than penalties, additions to tax, and additional amounts that
relate to adjustments to partnership items). See sec.
6230(a)(2)(A)(i). These procedures require the timely issuance
of an NOD as a precondition to the Commissioner’s assessment of a
deficiency or accuracy-related penalty related to affected items.
A valid NOD requires that any partnership-level proceeding
involving the related partnership be complete. See sec. 6225(a);
GAF Corp. v. Commissioner, supra at 528; Maxwell v. Commissioner,
supra at 788.
When an FPAA is issued to the partnership and a
partnership-level proceeding as to the FPAA is properly brought
in this Court, the partnership-level proceeding is complete when
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our decision becomes final. See sec. 6225(a)(2). When the
Commissioner opts not to begin a partnership-level proceeding or
issue an FPAA within the normal period of limitations, the
partnership-level proceeding is considered complete when the
Commissioner accepts the partnership’s return as filed. See
Roberts v. Commissioner, 94 T.C. 853, 860-861 (1990). Whether
the Commissioner has accepted a partnership return as filed is a
question of fact that turns in part on a finding of whether the
Commissioner opted to allow the normal period of limitations to
expire without beginning a partnership-level proceeding. See id.
III. Positions of the Parties
The parties agree that respondent has not begun a
partnership-level proceeding as to Intervest’s 1999 taxable year
and that the normal period of limitations with respect to
Intervest has expired as to that year. Petitioners argue that
the NOD is invalid (and hence the Court lacks jurisdiction)
because respondent issued the NOD to them before accepting
Intervest’s return for 1999 as filed. Petitioners support their
argument primarily with a reference to the above-quoted
statements in respondent’s motion to stay. Petitioners also
point the Court to the grand jury investigation and to the
Commissioner’s general policy that a civil proceeding against a
taxpayer should not be commenced while the taxpayer is under
criminal investigation. Petitioners conclude that respondent
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deferred his decision on whether to audit Intervest’s return
until after the completion of the grand jury investigation and
any related criminal prosecution.
Respondent acknowledges that the Court lacks jurisdiction to
decide any partnership item included in the NOD, e.g., whether
the disallowed loss was in fact generated by Intervest.
Respondent also concedes that he may no longer adjust Intervest’s
partnership items absent an exception to the normal period of
limitations. Nevertheless, respondent argues that the affected
items included in the NOD properly remain in dispute. Those
affected items, respondent asserts, include whether petitioners
were at risk under section 465 and whether petitioners had a
sufficient basis under section 704(d) to deduct any of their
reported loss. Respondent also asserts that the accuracy-related
penalties are affected items to the extent the penalties do not
relate to partnership items. As to petitioners’ argument that
the NOD was issued prematurely, respondent counters that
Intervest’s return for 1999 had been accepted as filed as of the
time the NOD was issued.
IV. Timing of the NOD
We agree with respondent that the NOD was not issued
prematurely and is valid. Intervest is the partnership to which
the partnership items underlying the adjustments in the NOD
relate, and respondent has neither begun an audit of Intervest
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nor notified anyone that respondent was beginning an audit of
Intervest.7 See sec. 6223(a). Respondent therefore could not
have issued the NOD to petitioners before the completion of any
partnership-level proceeding involving Intervest in that
respondent never started any such proceeding in the first place.
Where, as here, the Commissioner has opted not to commence within
the normal period of limitations a partnership-level proceeding
as to an entity subject to TEFRA, section 6225(a) serves as no
restriction on the time within that period when the Commissioner
may issue an NOD related to the partnership. It therefore was
proper for respondent to have issued the NOD to petitioners just
before the normal period of limitations was going to expire on
petitioners’ (and Intervest’s) 1999 taxable years. Although
respondent may have later considered during this proceeding the
possibility of beginning a partnership-level proceeding as to
Intervest on account of fraud or the like, any such consideration
did not invalidate the NOD.
Petitioners assert that this case is indistinguishable from
Soward v. Commissioner, T.C. Memo. 2006-262. There, the Court
granted the Commissioner’s motion to dismiss for lack of
jurisdiction because the Commissioner had issued an NOD while
7
Because respondent did not commence a partnership-level
proceeding as to Intervest for 1999, for purposes of this
proceeding the parties are bound by the partnership items as
reported on Intervest’s return. See Roberts v. Commissioner, 94
T.C. 853, 862 (1990).
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litigation with respect to the FPAA was ongoing. The Soward case
is factually distinguishable from this case given that there but
not here an FPAA had been issued and litigation as to the FPAA
was ongoing when the NOD was issued. Petitioners also assert
that respondent was required to wait until the expiration of the
normal period of limitations before issuing the NOD to them. We
disagree. As stated above, the Commissioner may issue an NOD
during the normal period of limitations applicable to a TEFRA
entity when at the time of such issuance he has accepted the
TEFRA entity’s return as filed. Our opinions in Roberts v.
Commissioner, supra, and Gustin v. Commissioner, T.C. Memo.
2002-64, are consistent with this interpretation. In both cases,
the NOD was issued before the normal period of limitations
expired as to the partnership but after the Commissioner had
accepted the partnership return as filed.
We note for completeness that we recognize that the NOD at
issue referenced MCM (rather than Intervest) as the TEFRA entity
to which the adjustments in the NOD related. Petitioners place
no weight on this fact in arguing that the Court lacks
jurisdiction over this case. Neither do we. Petitioners
reported on their 1999 tax return that they were deducting the
$4,538,844 loss as a passthrough item from a partnership,
identified by them as MCM, and petitioners’ return gave no
indication that MCM was actually Mr. Meruelo’s single-member
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limited liability company that was a disregarded entity for
Federal tax purposes, or that the loss actually stemmed from
Intervest. Nor did MCM or Intervest file with respondent any
document that would have placed petitioners’ reporting position
in question. Respondent made his determination in the NOD on the
basis of all information that petitioners had supplied to him as
of the time that the NOD was issued.
V. Characterization of the Affected Items
We now turn to petitioners’ alternative argument.
Petitioners argue that the Court lacks jurisdiction because the
affected items set forth in the NOD are not in fact affected
items. We disagree. The three items in the NOD that respondent
has identified as affected items are in fact affected items that
require determinations at the partner level.
First, respondent determined as an affected item that
petitioners were not at risk in an activity to which section 465
applies. The ultimate limitation of deductions on account of the
amount for which a partner is at risk with respect to an activity
must be determined in a partner-level proceeding. See Hambrose
Leasing 1984-5 Ltd. Pship. v. Commissioner, 99 T.C. 298 (1992);
sec. 301.6231(a)(5)-1(c), Proced. & Admin. Regs.; see also
Roberts v. Commissioner, 94 T.C. at 861. Such a determination,
therefore, implicates an affected item that requires a
determination at the partner level. We note that respondent has
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informed the Court that respondent is looking outside the
partnership agreement to ascertain whether any “side agreements”
would have limited the amount for which petitioners were at risk.
Second, respondent determined as an affected item that
section 704(d) also limited petitioners’ claim to a deduction of
any part of the disallowed loss. This determination implicates
an affected item that requires a determination at the partner
level because the section 704(d) limitation restricts at the
partner level a partner’s ability to claim a partnership loss.
See Dial USA, Inc. v. Commissioner, 95 T.C. 1 (1990); sec.
301.6231(a)(5)-1(b), Proced. & Admin. Regs.; see also Gustin v.
Commissioner, supra. A partner must establish his basis in the
partnership in order to deduct a partnership loss. See sec.
704(d).
Third, respondent determined as an affected item that
petitioners are liable for an accuracy-related penalty under
section 6662. This determination implicates an affected item
that requires a determination at the partner level because the
imposition of such a penalty depends entirely upon our decision
on the first two affected items, which in turn are peculiar to
petitioners and not to Intervest. See sec. 301.6221-1T(c),
Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3838 (Jan. 26,
1999) (accuracy-related penalties are partner-level
determinations to the extent they are not attributable to an
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adjustment to a partnership item); cf. sec. 6221 (penalties
attributable to an “adjustment to a partnership item” are
determined at partnership level).
VI. Conclusion
We conclude we have jurisdiction to decide this case. We
have considered all arguments petitioners have made for a
contrary conclusion and, to the extent not discussed, we have
rejected those arguments as without merit.
To reflect the foregoing,
An appropriate order will
be issued.