DocketNumber: No. 16483-05L
Citation Numbers: 2009 T.C. Memo. 120, 97 T.C.M. 1611, 2009 Tax Ct. Memo LEXIS 116
Judges: \"Marvel, L. Paige\"
Filed Date: 5/27/2009
Status: Non-Precedential
Modified Date: 4/18/2021
MEMORANDUM OPINION
MARVEL,
The parties submitted this case fully stipulated under
Jean Mathia (Mrs. Mathia) resided in Oklahoma when she petitioned this Court on her own behalf and as personal representative of the
Mr. Mathia was a limited partner in Greenwich Associates (Greenwich), a New York limited partnership subject to the unified audit and litigation procedures of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, sec. 402(a), 96 Stat. 648, for the relevant tax years. Greenwich was one of approximately 50 partnerships and joint ventures participating in coal programs sponsored by the Swanton Corp., a Delaware corporation (collectively referred to as the Swanton partnerships).
Thirty of the Swanton partnerships were formed before the enactment of TEFRA. The remaining 20 Swanton partnerships, including Greenwich, were formed after the enactment of TEFRA and are subject to the TEFRA unified audit and litigation provisions applicable to partnerships (Swanton TEFRA partnerships).
Mr. Mathia owned an 8.484-percent limited partnership interest in Greenwich at all relevant times. 3 Mr. Mathia was neither a
Kevin Smith (Mr. Smith) served as the general partner and tax matters partner (TMP) of Greenwich. Neither Mr. Mathia nor Mrs. Mathia notified respondent that Mr. Smith did not have authority to enter into a settlement agreement on their behalf.
Respondent determined that the only purpose of the Swanton partnerships was to generate tax deductions. On or before *119 March 16, 1987, Greenwich received a notice of the beginning of an administrative proceeding (NBAP) for tax years 1982, 1983, and 1984. 5 On August 3, 1990, respondent issued to Greenwich a notice of final partnership administrative adjustment (FPAA) for 1982, 1983, and 1984. Mr. Smith timely filed a petition for review in this Court under
In the Greenwich litigation Greenwich was represented by Henry G. Zapruder (Mr. Zapruder) and Matthew Lerner (Mr. Lerner) of Zapruder & Odell, a law firm that served as counsel for most of the Swanton TEFRA partnerships. 6 In or about September 1991 respondent's attorneys and Zapruder & Odell reached an agreement in principle regarding the parameters of a settlement with respect to 19 of the 20 Swanton TEFRA partnerships, including Greenwich (1991 agreement). The 1991 agreement was reflected in an exchange of letters between Zapruder & Odell on behalf of the partnerships and respondent's attorneys, Robert Marino and Moira Sullivan (Ms. Sullivan). Included in the 1991 agreement was a requirement that the TMP for each *120 partnership sign a
After respondent's attorneys and Zapruder & Odell reached the 1991 agreement, they continued to negotiate aspects of the proposed settlement. They also began the process of applying the general terms to each partnership and partner. That process included gathering and exchanging information to enable respondent to calculate partnership-level adjustments and each partner's distributive share adjustment, preparing reports showing the calculations, and preparing and executing decision documents that memorialized the terms of the proposed settlement with respect to each Swanton partnership as well as closing agreements *121 as appropriate.
By letter dated January 10, 1992, Zapruder & Odell requested that respondent "designate someone * * * to administer the settlement of the Swanton cases." By letter dated January 15, 1992, respondent's counsel advised Zapruder & Odell that respondent had assigned another attorney, Frances Chan, "to immediately effectuate the settlement of the Swanton Partnerships." Respondent's counsel also requested verification of each partner's investment in the 19 Swanton TEFRA partnerships that agreed to move forward with the settlement.
In July 1995 respondent sent to Mr. Lerner and Mr. Smith letters enclosing the following documents with respect to the Greenwich litigation: (1) The decision document reflecting adjustments to partnership items for each of the years 1982, 1983, and 1984; (2) the computations on which the decision document was based; (3) closing agreements for some of the Greenwich limited partners; 8 and (4) Forms 886Z(C), Partner's or S Corporation Shareholders' Shares of Income. Respondent informed Mr. Lerner 9 and Mr. Smith that limited partners in Greenwich seeking treatment deviating from the adjustments in the decision document needed to sign individual closing *122 agreements before the decision document could be filed with the Court. The letter also stated the following: Please understand that your signing each partnerships' [sic] Decision Documents constitutes the offer to settle that particular partnership with the Internal Revenue Service and the countersignature of the documents constitutes the Internal Revenue Service's acceptance of that offer. No settlement of any partnership will be final until these documents are countersigned by the Internal Revenue Service.
On September 11, 1996, Mr. Smith signed the decision document. On September 25, 1996, Mr. Lerner signed the decision document and returned it to respondent's attorneys *123 that same day.
By letters dated July 17 and November 7, 1996, Greenwich's counsel mailed executed closing agreements with respect to Greenwich to Ms. Sullivan. Although none of the letters in the record disclosed how many of the Greenwich limited partners were required to sign closing agreements, the attachment to the notices of determination stated that seven partners were required to execute closing agreements before the Greenwich decision document could be signed by respondent. Mr. Mathia was not one of them. 10 The attachment also stated that the closing agreements were dated from November 12, 1999, to November 27, 2000, but did not identify the date to which it referred (e.g. date of receipt, date executed by taxpayer, date executed by respondent's agent, effective date). 11*124 The stipulated record does not explain why the closing agreements were dated in 1999 and 2000 when they were mailed to respondent in 1996. 12
By letter dated February 27, 2001, Ms. Sullivan sent another decision document with respect to the Greenwich litigation and the computations on which the decision document was based to Mr. Zapruder. The decision document was identical to the one mailed to Greenwich in 1995. In the letter Ms. Sullivan asked Mr. Zapruder to sign the document, to have Mr. Smith sign the document, and to return the signed decision document to her. Ms. Sullivan represented that as soon as respondent's counsel received the signed decision document, they would get it countersigned and file it immediately with the Court. Ms. Sullivan also described what would happen after the decision was entered by the Court, *125 and she warned Mr. Zapruder that his signature on the decision document "constitutes the offer to settle" and that the countersignature "constitutes the Internal Revenue Service's acceptance of that offer." The stipulated record does not contain any explanation as to why a second decision document was mailed to Greenwich's counsel after they had already delivered the executed original of the first decision document to Ms. Sullivan on September 25, 1996.
On August 30, 2001, respondent countersigned the decision document and submitted it to this Court. The Court filed the decision document on August 31, 2001, as a stipulation of settlement (Greenwich stipulation). On September 7, 2001, this Court issued an order to show cause, directing Mr. Smith to file a written response showing cause as to why the Court should not enter a decision in accordance with the terms of the Greenwich stipulation. Mr. Smith did not file a response, and on January 17, 2002, this Court entered an order and decision resolving the Greenwich litigation. On April 17, 2002, the decision became final.
On September 27, 2002, respondent mailed petitioners a Form 4549A-CG, Income Tax Examination Changes, notifying them *126 of a computational adjustment 13 to their 1983 income tax liability as a result of the resolution of the Greenwich litigation. On January 8, 2003, respondent notified petitioners of adjustments to their 1982 and 1984 income tax liabilities. Petitioners did not agree to waive or extend any period of limitations for the assessment of their 1982, 1983, or 1984 tax liability. On January 27, 2003, respondent assessed against petitioners the income tax deficiencies and interest for 1982, 1983, and 1984 attributable to the computational adjustments. On October 27, 2003, petitioners paid all of the tax, but not the interest, that respondent had assessed. 14
On February 6, 2004, petitioners submitted Forms 843, Claim for Refund and Request for Abatement, requesting an abatement of the interest accrued on their 1982, 1983, and *127 1984 income tax liabilities under
On February 10, 2004, respondent issued to petitioners a Final Notice -- Notice of Intent to Levy and Notice of Your Right to a Hearing for 1982, 1983, and 1984, and petitioners timely requested a
On April 7, 2004, respondent denied petitioners' interest abatement claim. On May 5, 2004, petitioners submitted a request to respondent's Appeals Office to review the denial of their interest abatement claim.
On October 15, 2004, Mrs. Mathia, acting individually, filed a Form 8857, Request for Innocent Spouse Relief, wherein she sought relief under
On August 5, 2005, respondent issued to petitioners a notice of determination with respect to the notice of intent to levy and a second notice of determination with respect to the notice *128 of Federal tax lien filing. On August 18, 2005, respondent issued a final determination letter to petitioners denying petitioners' request for abatement of interest under
On September 6, 2005, petitioners timely filed a petition contesting each of respondent's determinations. Petitioners contend that under
Under
Following a hearing the Appeals Office must determine whether the Secretary may proceed with the proposed collection action. In so doing, the Appeals Office is required to consider: (1) The verification presented by the Secretary that the requirements of applicable law and administrative procedures have been met; (2) the relevant issues raised by the taxpayer; and (3) whether the proposed collection action appropriately balances the need for efficient collection of taxes with a taxpayer's concerns regarding the intrusiveness of the proposed collection action.
Petitioners' primary argument--that the applicable period of limitations expired before respondent's assessment -- constitutes a challenge to petitioners' underlying tax liability. See
In The expiration of the period of limitation on assessment *132 is an affirmative defense, and the party raising it must specifically plead it and carry the burden of proving its applicability.
Accordingly, *133 if petitioners present a prima facie case that respondent failed to timely assess tax and interest under
Under the TEFRA partnership provisions, the income tax treatment of partnership items ordinarily is determined through a proceeding conducted at the partnership level.
To commence a partnership-level proceeding, the Commissioner must issue an NBAP to the TMP 19 and to all other partners entitled to notice under
The Commissioner is prohibited from assessing a deficiency attributable to the adjustment of a partnership item until the partnership-level proceeding is completed.
The *137 period for assessment mentioned above continues to apply as long as an item remains a partnership item. See
Respondent contends that petitioners did not execute a settlement agreement under
Petitioners assert that the relevant partnership items converted to nonpartnership items under
A controversy before this Court may be settled by agreement between the parties.
A settlement agreement can be reached through offer and acceptance made by letter, or even in the absence of a writing.
Under TEFRA, a settlement agreement entered into by the TMP will generally bind a nonnotice partner if the settlement agreement states that the agreement is binding on the nonnotice partner.
As we discussed above, petitioners argue that Mr. Mathia entered into a
Petitioners argue that Mr. Mathia entered into a
(1) A September 19, 1991, letter advising all partners in the Swanton Partnerships to "accept the Government's settlement offer which was communicated to us this week";
(2) a November 8, 1991, letter indicating that the offer communicated in the September 19, 1991, letter had been accepted by 19 of the 20 Swanton TEFRA partnerships (including Greenwich). The letter stated that the cases had been settled, and that only the preparation of decision documents and closing agreements memorializing the terms of the settlement remained outstanding;
(3) a January 10, 1992, letter from Mr. Lerner to respondent inquiring about respondent's progress in implementing the settlement; and
(4) a March 13, 1992, letter referencing the settlement that occurred in 1991 and informing the partners that the settlement was being finalized.
As further *142 proof that Mr. Mathia and respondent entered into a settlement agreement in September 1991, petitioners rely on a series of letters from respondent:
(1) A letter dated January 14, 1992, in which respondent's
attorney informed Mr. Lerner that he was appointing an attorney to effect the settlement of the Swanton TEFRA Partnerships;
(2) a letter dated in October 1992 that was received by Zapruder & Odell on October 26, 1992, in which respondent's attorney stated that "we agreed to enter into the settlement agreement" on the basis that the TMP for each partnership was settling the case on behalf of all partners;
(3) a letter dated April 9, 1993, in which respondent's attorney listed the "terms on which we agreed on September 30, 1991";
(4) a letter dated June 11, 1993, that discussed "terms of settlement" and other "computational issues" affecting the settlement process; and
(5) a letter dated September 3, 1993, again discussing the "terms of the settlement" and other various issues pertaining to the settlement.
Although the above-described correspondence confirms that Greenwich and respondent reached an agreement in 1991 to enter into a settlement of the partnership-level proceeding, we remain *143 unconvinced that the agreement was sufficiently fleshed out in 1991 to constitute a binding settlement agreement at that time. The agreement in principle that was reached in 1991 set forth the parameters of a settlement, but the correspondence described above reflects that negotiations continued between respondent and the attorney representing the Swanton TEFRA partnerships to at least September 3, 1993. Moreover, the correspondence indicates that the execution of a decision document resolving the partnership litigation depended upon the fulfillment of certain conditions such as the TMP's ability to represent that all partners consented to the settlement. 22*144 Implementing and finalizing the proposed settlement required the collection and analysis of detailed information, the preparation of calculations and agreements, and in some cases, the execution of closing agreements by individual partners.
Even if we assume, however, that respondent and the Greenwich TMP entered into a binding settlement agreement to resolve the partnership litigation in 1991, we would still conclude that agreement did not qualify as a settlement agreement between a partner and the Secretary within the meaning of
In At the time the IRS entered the Form 906 agreement, it faced competing incentives in determining how best to handle the partnership tax issues presented for the * * * [taxpayers'] post-1982 tax years. On the one hand, as reflected by the TEFRA*146 partnership provisions, it ordinarily is efficient for the IRS to make the determination as to the tax treatment of partnership items at the partnership level. On the other hand, because the IRS was in the process of negotiating with the * * * [taxpayers] on an individual partner level with respect to pre-TEFRA tax years, there were potential efficiencies in also dealing with the * * * [taxpayers] individually with respect to post-TEFRA tax years. In the Form 906 agreement, the IRS resolved these competing incentives by
The court's analysis in
The 1991 agreement reached by respondent and Mr. Lerner on behalf of the Swanton TEFRA partnerships outlined in principle the terms that would govern a settlement of the partnership litigation involving 19 of 20 Swanton TEFRA partnerships. It did not reflect an agreement to settle any individual partner's liability resulting from adjustments to partnership items outside of the partnership-level proceeding. Consequently, the agreement did not operate to remove Mr. Mathia or any other partner from the partnership-level proceeding. Instead, the agreement started a process that culminated with the filing of the Greenwich stipulation and the Court's entry of decision. After the decision resolving the partnership litigation became final, respondent adjusted petitioners' tax liability in accordance with the decision resolving the partnership litigation as required and permitted by
We conclude on the record before us that the agreement reached between respondent and Mr. Lerner was an agreement relating to the TEFRA partnership proceeding on behalf of the Swanton TEFRA partnerships (including Greenwich) and was not *149 an agreement between respondent and Mr. Mathia that operated to convert Mr. Mathia's partnership items into nonpartnership items as contemplated by
Petitioners also argue that Mr. Mathia entered into a
We agree with respondent. As with the 1991 agreement, the adjustments to partnership items in the Greenwich stipulation were adjustments to be made at the partnership level. Under
We conclude that neither Mr. Mathia nor his estate entered into a settlement agreement with respondent that qualified as a settlement *151 agreement with a partner within the meaning of
(1) In general. -- In the case of any assessment of interest on -- (A) any deficiency attributable in whole or in part to any error or delay by an *153 officer or employee of the Internal Revenue Service (acting in his official capacity) in performing a ministerial act * * * * * * * * * * the Secretary may abate the assessment of all or any part of such interest for any period. * * *
A ministerial act is a procedural or mechanical act that does not involve the exercise of judgment or discretion and that occurs during the processing of a taxpayer's case after all prerequisites to the act, such as conferences and reviews by supervisors, have taken place.
When Congress enacted
Petitioners contend that they are entitled to an abatement of interest for three periods beginning on December 27, 1984, when petitioners allege respondent issued the first Greenwich NBAP, to August 25, 2003. 28 Our analysis of each period is set forth below.
Petitioners assert that respondent issued NBAP's with respect to Greenwich's 1983 and 1984 tax years which Greenwich received on December 27, 1984, and March 16, 1987, respectively, and that respondent took an unreasonable amount of time by not providing a further response until August 3, 1990, when respondent issued to Greenwich the FPAA for tax years 1982, 1983, and 1984. Petitioners allege that the interest that accrued during this period was attributable to delays resulting from the uncoordinated involvement of multiple IRS districts and that the lack of coordination was a ministerial act.
Petitioners' argument *156 is not supported by the record. In
The mere passage of time during the litigation phase of a dispute does not establish an error or delay by the Commissioner in performing *158 a ministerial act because decisions about how to proceed in the litigation phase of a case necessarily involve discretion.
Respondent's decisions and actions during this period were managerial and involved the exercise of discretion. We conclude that respondent did not abuse his discretion by denying petitioners' request for abatement of interest for the period from December 27, 1984, to August 3, 1990.
During this period, petitioners claim, respondent was dilatory in processing the closing agreements and
The record with which we are presented confirms that the 1991 agreement presented a challenge that involved the collection of information and the preparation of documents for 19 Swanton TEFRA partnerships and each of the partners. Nevertheless, we must examine the record for evidence pertaining to the manner in which respondent implemented and finalized the Greenwich settlement.
The notice of determination denying petitioners' abatement request contains no explanation of what transpired from November 8, 1991, to August 30, 2001. It simply states that respondent did not find any errors or delays that merit *160 the abatement of interest. Consequently we review the record stipulated by the parties for what it tells us about the Greenwich settlement process from November 8, 1991, to August 30, 2001.
The record reveals the following. In approximately September 1991 respondent's attorney and Greenwich's attorney reached an agreement in principle to settle the TEFRA partnership litigation pending in this Court. On July 3, 1995, respondent's attorney mailed to Greenwich's counsel the decision document and the closing agreements for execution by counsel, Greenwich's TMP, and the partners named in the closing agreements. On September 25, 1996, Greenwich delivered the decision document signed by the TMP and Greenwich's counsel to respondent. On July 17 and November 7, 1996, closing agreements were mailed to respondent's counsel, Ms. Sullivan. On February 27, 2001, Ms. Sullivan sent another decision document to Greenwich's counsel and requested that it be executed. On August 30, 2001, a representative of respondent countersigned the decision document and submitted it to this Court.
The stipulated record reveals the following gaps in the processing of the Greenwich paperwork: (1) An approximately 4year *161 gap between the 1991 agreement and July 3, 1995, when the decision document and the closing agreements were mailed to Greenwich, (2) an approximately 1-year gap between July 3, 1995, and November 7, 1996, the last date that the stipulated record shows closing agreements were mailed to respondent's counsel, and (3) an approximately 5-year gap between November 8, 1996, and August 30, 2001, when the decision document was countersigned by respondent. We examine each of the gaps to decide whether respondent abused his discretion regarding the abatement of interest. In making the examination, we assume that the stipulated record includes the administrative file that was available to respondent when he made his decision not to abate interest.
With respect to the first gap, the stipulated record establishes that after the 1991 agreement was reached, the parties to the Greenwich partnership litigation gathered and exchanged information necessary to identify the Greenwich partners who were required to execute closing agreements, and respondent prepared necessary computations as well as the Greenwich decision document and closing agreements. That process was complicated and took time. Although *162 the approximately 4-year gap was substantial, we see nothing in the stipulated record that supports a conclusion that the first gap was the result of unreasonable delay by respondent in performing a ministerial act. Rather, the stipulated record reflects that the process of implementing the settlements of the Swanton TEFRA partnerships was a managerial nightmare requiring cooperation over an extended period to prepare necessary calculations and paperwork and to ensure that the TMPs could satisfy respondent's requirement that they certify no partner objected to the settlement of the partnership actions. Petitioners' complaint here is grounded in a concern about the management of the settlement process, but
With respect to the second gap, the stipulated record indicates that respondent mailed the decision document and the closing agreements to Greenwich, and Greenwich took approximately 1 year to return the executed decision document and the closing agreements to respondent. We see nothing in the stipulated record that supports a conclusion that the second gap was the result of any unreasonable *163 delay by respondent in performing a ministerial act.
The third gap of approximately 5 years requires a different conclusion, however. The stipulated record is substantial and includes paperwork generated by respondent as well as correspondence between respondent and Greenwich. The stipulated record reflects that Greenwich delivered an executed decision document to respondent's counsel on September 25, 1996, and that Greenwich also mailed signed closing agreements to respondent on July 17 and November 7, 1996. Although the stipulated record does not clearly reflect that all of the Greenwich closing agreements were included in the two mailings, there is no correspondence in the administrative record to suggest that any of the required closing agreements were missing or that Greenwich's TMP and attorneys were dilatory in any way. Consequently, we infer from the documents that no later than November 1996 Greenwich had returned the necessary documents to respondent's counsel and that the only steps necessary to consummate the Greenwich settlement were the ministerial acts of countersigning the decision document and the closing agreements and filing the decision document with the Court.
The *164 stipulated record, however, contains no credible explanation of the 5-year gap between the delivery of closing agreements on November 7, 1996, and the countersigning on August 30, 2001, of the decision document, which was filed with the Court as a stipulation of settlement on August 31, 2001. In addition, the stipulated record reflects that on February 27, 2001, respondent's counsel sent a second decision document to Greenwich's counsel that was identical to the first decision document executed by Greenwich in 1996, a development that suggests that respondent may have lost the original executed decision document.
In The Commissioner is in the best position to know what actions were taken by IRS officers and employees during the period for which petitioners' abatement request was made and during any subsequent inquiry based upon that request. If we were to uphold the Commissioner's determination not to abate interest where the Commissioner has not clearly explained the basis for the exercise of that discretion, we would be condoning a review framework that would encourage the Commissioner to provide as little information as possible about the handling of cases during the period of the abatement request and about the inquiry in response to the request. * * *
We have a similar dilemma in this case. The notice of determination contains no explanation of how respondent exercised his discretion and does not recite any facts in support of the exercise of that discretion. Although the stipulated record provides many of the relevant facts, it fails to provide critical information that only respondent would have. For example, the stipulated record does not establish *166 the date when all of the closing agreements were received by respondent's attorneys or indicate what respondent did with the closing agreements he received in 1996. The only credible evidence in the record 31 regarding respondent's receipt of closing agreements establishes that closing agreements were sent to respondent in July and November 1996. In the absence of contrary evidence, we infer that respondent had the closing agreements no later than November 1996. The stipulated record does not explain the delay on the part of respondent in countersigning and filing the Greenwich decision document.
In
The present case, like the
Because the delay in countersigning the decision document is not explained by credible evidence in the stipulated *168 record, we conclude that respondent abused his discretion in refusing to abate interest for the period from November 8, 1996, to August 30, 2001.
Petitioners argue that they are entitled to abatement of interest accrued from August 30, 2001, the date the Greenwich stipulation was signed, to August 25, 2003, the date they allege respondent issued the notice of intent to levy. 32 Petitioners assert that the issuance of the notice is a ministerial act which respondent was dilatory in performing.
Respondent could not assess income tax liabilities of individual partners bound by the decision entered in the Greenwich partnership litigation until the decision became final. See
For the remaining period, January 28, 2003, through February 10, 2004, the stipulated record shows that respondent mailed required notices of the assessments to petitioners, conducted an investigation to identify levy sources and evaluate whether a levy was appropriate, issued a notice and demand for payment to petitioners, and made an administrative decision to issue a notice of intent to levy. The process used by the IRS to decide whether to proceed with collection by levy requires managerial evaluation and the exercise of judgment and does not consist solely of ministerial acts. That process was followed in this *170 case. Because we cannot identify any unreasonable delay in performing a ministerial act during this period, we sustain respondent's determination as to the entirety of this period.
We conclude that respondent did not abuse his discretion by denying petitioners' request for interest abatement for the period from August 30, 2001, to August 25, 2003.
Lastly, petitioners request abatement of interest resulting from application of the "global netting" concept of
Petitioners' argument is without merit for several reasons. First,
III.
The only issues raised with respect to respondent's collection actions were the limitations issue and the interest abatement issue. We conclude that the requirements of
We have considered *173 all the other arguments made by petitioners, and, to the extent not discussed above, conclude those arguments are irrelevant, moot, or without merit.
Because we conclude that petitioners are entitled to interest abatement for the period from November 8, 1996, to and including August 30, 2001, petitioners' unpaid liability for purposes of
To reflect the foregoing,
1. Unless otherwise indicated, all section references are to the Internal Revenue Code, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. We use the term "petitioners" throughout this opinion to refer to Mr. Mathia or his estate and Mrs. Mathia.
3. Mrs. Mathia, individually, was never a partner in Greenwich.↩
4. Under
5. The record does not indicate the precise date on which respondent issued Greenwich the NBAP.↩
6. In the attachment to notices of determination dated Aug. 5, 2005, issued by the Appeals Office with respect to the lien and proposed levy, the Appeals Office states that Mr. Lerner did not represent Greenwich. We find to the contrary on the basis of the stipulations of the parties.↩
7.
8. By letter dated sometime in July 1995, Ms. Sullivan sent to Mr. Lerner a revised closing agreement for one of the Greenwich limited partners. On that same date, Ms. Sullivan mailed copies of all amended closing agreements to Mr. Smith so that Mr. Smith could arrange for execution of the agreements by the affected partners.↩
9. Although Mr. Lerner remained one of Greenwich's counsel of record until November 1999, he apparently left Zapruder & Odell in May 1996. Mr. Lerner withdrew from the Greenwich litigation in 1999.↩
10. Mr. Mathia did not execute a closing agreement, and his wife did not execute one on his behalf.↩
11. The attachment further states that "The most significant delays encountered with this partnership were both in contacting the tax matters partner, Smith, and receiving his signed 906's." However, we can find no evidence in the record other than the conclusory statement in the attachment to support a finding that the delay in executing the closing agreements was attributable to either Greenwich's TMP or its counsel.
12. In 2004 Appeals Officer Troy Talbott attempted to find out the date by which the Internal Revenue Service had received all of the Forms 906, Closing Agreement on Final Determination Covering Specific Matters, for Greenwich, but he was apparently unable to do so.↩
13. A computational adjustment changes the tax liability of a partner to properly reflect the treatment of a partnership item.
14. Petitioners paid $ 149,360, $ 4,015, and $ 2,331, respectively, towards their 1982, 1983, and 1984 tax liabilities.↩
15. The term "Secretary" means "the Secretary of the Treasury or his delegate",
16.
17. Petitioners filed a motion to shift the burden of proof under
18. A nonpartnership item is defined as an item which is not a partnership item.
19. Under TEFRA a partnership must have a TMP who is either appointed by the partnership or determined in accordance with statutory and regulatory requirements.
20. The finality of a Tax Court decision is determined under
21. The period under
22. Among other things, the settlement of the partnership-level proceeding was conditioned upon the TMP's executing a stipulation consenting to the entry of decision under
23. Two of a total of five consolidated actions were before the court on cross-motions for summary judgment.
24. Under
25. However,
26. In 1996 Congress amended
27. Because the taxes in question are for years before 1996, the temporary regulations (rather than the final ones) are applicable, though the same in substance insofar as relevant here.↩
28. Petitioners erroneously contend that Aug. 25, 2003, was the date respondent issued the notice of intention to levy to Greenwich.↩
29. The delay of a civil matter until the resolution of a related criminal matter is a longstanding policy of the IRS.
30. Several test cases were tried in 1992, and an opinion was filed in 1993 in The Court's practice of selecting test cases and holding other cases in abeyance pending the resolution of the test cases was among the management tools adopted to deal with the large number of cases. It was not feasible to litigate simultaneously hundreds of cases involving substantially similar issues. Here, respondent's counsel turned to the group of TEFRA cases, including petitioner's partnership, as soon as the trial of the Swanton test cases concluded in 1992. Prior to that time, the delays are explained by the complexities and burdens of managing the cases.↩
31. Although the notices of determination issued under
32. We have found that respondent issued the notice of intent to levy on Feb. 10, 2004.↩
33. In several of the Swanton TEFRA partnership cases that we have decided, we found that some of the Internal Revenue Service's files were destroyed as a result of the destruction of the World Trade Center on Sept. 11, 2001. See, e.g.,
34. According to the 1991 agreement, any partner who reported any debt forgiveness income in 1987 was entitled to file a claim for refund for the tax paid on that income. Petitioners did not file a claim for refund with respect to any 1987 debt forgiveness income.↩
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Motor Vehicle Mfrs. Assn. of United States, Inc. v. State ... , 103 S. Ct. 2856 ( 1983 )
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Sego v. Commissioner , 114 T.C. 604 ( 2000 )
Lunsford v. Comm'r , 117 T.C. 183 ( 2001 )
Goza v. Commissioner , 114 T.C. 176 ( 2000 )
Robinson v. Commissioner , 57 T.C. 735 ( 1972 )
Mailman v. Commissioner , 91 T.C. 1079 ( 1988 )
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Dorchester Indus. v. Comm'r , 108 T.C. 320 ( 1997 )