- 22 -
Finally, we note that case law in the Ninth Circuit, in
which this case would be appealable, supports our decision as to
the validity of section 301.6231(c)-5T, Temporary Proced. &
Admin. Regs., supra. In In re Leland, 160 Bankr. 834, 836 (E.D.
Cal. 1993), the bankruptcy court stated:
The debtors [sic] argument that Hoyt's partnership
items became nonpartnership items as of the date his
criminal investigation began is simply unsupported and
ignores the entirety of * * * [section 301.6231(c)-5T,
Temporary Proced. & Admin. Regs., supra.]
Though we agree with petitioners that the bankruptcy court's
reliance on language from Chef's Choice Produce, Ltd. v.
Commissioner, 95 T.C. 388 (1990), is misplaced, the bankruptcy
court cited the plain and unequivocal language of the regulation
in sustaining its dual requirements.
Additionally, the bankruptcy court in In re Miller,13 174
Bankr. 791, 796 (E.D. Cal. 1994), affd. 81 F.3d 169 (9th Cir.
1996), stated:
Miller also argues that the regulations are in conflict
with the Internal Revenue Code and by merely showing that
Hoyt was under criminal investigation, Hoyt's status as a
TMP was terminated. We disagree. If this were true, no
party with any certainty would know when a criminal
investigation began in order to terminate a TMP's status.
This uncertainty would undermine one of the main goals in
enacting TEFRA.
* * * * * * *
13 Counsel for petitioners also served as counsel for the
taxpayers in In re Leland, 160 Bankr. 834 (E.D. Cal. 1993), and
in In re Miller, 174 Bankr. 791 (E.D. Cal. 1994), affd. 81 F.3d
169 (9th Cir. 1996).
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