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required the designation of a TMP at the time the return is filed
or, subsequently, by a statement filed at the service center at
which the partnership return was filed. The Court of Appeals
then reasoned that the Commissioner would be on actual notice of
the identity of the TMP after March 5, 1987, and would not be in
reasonable reliance of a partner’s portrayal as TMP. Based on
that reasoning and the fact that several consents were executed
by the general partner as TMP, both before and after the
regulation was promulgated or enacted, the Court of Appeals in
Medical held that estoppel did not apply. Because only one of
the consents was executed prior to the promulgation of the
regulation, the court held that “the Commissioner’s estoppel
argument applies to only one of the consents”. Medical &
Business Facilities, Ltd. v. Commissioner, 60 F.3d at 212.
The facts of this case are generally similar to those in
Medical. One significant difference that distinguishes this case
from Medical is that, in this case, only one consent was executed
on March 4, 1986, which was prior to the March 5, 1987,
promulgation of the regulation. The consent used in this case is
of the open-ended variety, in that it continues in effect until
certain action(s) are taken by the parties.
The facts in this case show that the partnership was aware
of the circumstances. Costello executed documents as the TMP of
the partnership. Walsh, the promoter and manager of the
partnership, specifically requested Costello to execute the
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