Life Care Communities of America, LTD., a Florida Limited Partnership, Robert W. and Johanna McMichael, Partners Other Than the Tax Matters Partner - Page 7

                                        - 7 -                                         

          innocent spouse under section 6013(e).  Respondent moves to                 
          dismiss for lack of jurisdiction and to strike asserting that the           
          Court lacks jurisdiction to address the matter in this                      
          partnership level proceeding.                                               
               It is now well settled that the Tax Court lacks jurisdiction           
          to consider whether a taxpayer/partner is entitled to innocent              
          spouse relief under section 6013(e) in the context of partnership           
          level proceedings.  See Dynamic Energy, Inc. v. Commissioner, 98            
          T.C. 48 (1992); Marthinuss v. Commissioner, T.C. Memo. 1995-58,             
          and cases cited therein.  The question of whether Johanna                   
          McMichael is entitled to innocent spouse relief can be raised in            
          a partner level affected items proceeding following the issuance            
          of a notice of deficiency by invoking the Tax Court's overpayment           
          jurisdiction.  See, e.g., Mann-Howard v. Commissioner, T.C. Memo.           
          1992-537.  Consequently, we shall grant respondent's motion to              
          dismiss for lack of jurisdiction and to strike.                             
          2.  Respondent's Motion for Partial Summary Judgment                        
          Summary judgment is intended to expedite litigation and                     
          avoid unnecessary and expensive trials.  Florida Peach Corp. v.             
          Commissioner, 90 T.C. 678, 681 (1988).  Summary judgment upon all           
          or any part of the legal issues in controversy is appropriate "if           
          the pleadings, answers to interrogatories, depositions,                     
          admissions, and any other acceptable materials, together with the           
          affidavits, if any, show that there is no genuine issue as to any           





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011