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from the majority’s holding, rooted in Maxwell v. Commissioner,
87 T.C. 783 (1986), that the notice of deficiency is invalid so
as to require that we grant petitioner’s motion for summary
judgment.
II. Maxwell v. Commissioner
The majority relies on Maxwell v. Commissioner, supra, and
cases following it (the Maxwell line of cases) for the
proposition that we lack subject matter jurisdiction to
redetermine a deficiency attributable to affected items until the
related partnership proceeding (if any) is completed. The
majority concludes that a notice of deficiency is invalid as to
affected items if issued before the conclusion of the related
partnership proceeding.
In the Maxwell line of cases, we relied upon the overriding
principle that, in enacting the TEFRA partnership provisions,1
"Congress intended administrative and judicial resolution of
disputes involving partnership items to be separate from and
independent of disputes involving non-partnership items.”
Maxwell v. Commissioner, supra at 788. I believe, however, that
we erred in the Maxwell line of cases when, in effect, we made
separation and independence synonymous with jurisdiction.
1 Sec. 402(a) of the Tax Equity and Fiscal Responsibility
Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 324, 648, added
subchapter C to chapter 63, subtitle F of the Internal Revenue
Code (the TEFRA partnership provisions). The TEFRA partnership
provisions now comprise secs. 6221 through 6234.
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