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given rise to deficiencies in tax (and additional interest under
section 6621(c)) that had been assessed against the taxpayers.
In addition to assigning error to the Commissioner’s
determination of the affected items, the taxpayers assigned error
to the Commissioner’s prior assessments and to the deficiencies
that gave rise to those assessments. Among other errors assigned
by the taxpayers was the Commissioner’s failure to allow
equitable recoupment in determining the deficiencies previously
assessed. The Commissioner moved to dismiss with respect to the
claim for equitable recoupment on the ground that we lacked
jurisdiction to redetermine the taxpayers’ tax for the years in
issue “to the extent that the amounts assessed * * * are
attributable to the proper reporting of partnership items.” As
the Court noted, the taxpayers had conceded: “we do not have
jurisdiction over the computational assessments in this
proceeding”. We concluded: “Accordingly, the doctrine of
equitable recoupment does not apply.”
In this proceeding under section 6226, it is not appropriate
for us to determine whether the defense of equitable recoupment
is an affected item requiring partner-level determinations. We
can consider whether in fact the defense of equitable recoupment
is an affected item requiring partner-level determinations if and
when a computational adjustment is made, a notice of deficiency
is issued, and a proper petition is filed. Cf. Carmel v.
Commissioner, 98 T.C. 265 (1992).
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Last modified: May 25, 2011