- 7 - It is Petitioners [sic] contention that the 872-A executed by the parties is clear and ambiguous [sic] on its face and therefore must be strictly construed in accordance with its own terms. The thrust of petitioners' argument is that respondent is legally precluded from adjusting petitioners' income to correct their share of the losses reported from Thunderbird because BDB was not specifically mentioned in the consent, and petitioners did not directly own an interest in Thunderbird. We answered petitioners' argument in Brody I as follows: Petitioners' only claim is that the omission of any reference to BDB in the consent forecloses any adjustment to their share of the losses of Thunderbird after the general period of limita- tions expired because they did not directly own an interest in Thunderbird. Petitioners' argument simply begs the question of what was intended by the parties as objectively determined from the language used in the consent. The fact that petitioners did not directly own an interest in Thunderbird means nothing different in the context of interpreting the consent than it meant in the context of petitioners' income tax return. Petitioners deducted losses from Thunderbird on their return, in accordance with their partner- ship interest in BDB, and the consent is clearly intended to cover partnership items from Thunderbird. It is also clear that is precisely what was intended by the Commissioner. Furthermore, had the consent specifically named BDB, as petitioners claim is necessary, it would have been a different agreement with broader legal effect than the subject consent. In that case, any partnership item flowing from BDB into petitioners' return, not just partner- ship items from Thunderbird, would have beenPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011