GAF Corporation and Subsidiaries - Page 10




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                    5.  Maxwell Line of Cases                                           
               Since the parties agree that the primary questions are items             
          that are not before us in this proceeding, we will not concern                
          ourselves with our jurisdiction to determine those items.  We                 
          consider only our jurisdiction to determine the affected items.               
               As noted above, petitioner relies upon N.C.F. Energy                     
          Partners v. Commissioner, 89 T.C. 741 (1987), Maxwell v.                      
          Commissioner, 87 T.C. 783 (1986), and Gillilan v. Commissioner,               
          T.C. Memo. 1993-366, to support its argument that we have no                  
          jurisdiction over the affected items.                                         
               In Maxwell, we were confronted with a notice of deficiency               
          that was based on adjustments, some of which were unrelated to a              
          partnership and some of which were “affected items” within the                
          meaning of section 6231(a)(5).  We granted respondent’s motion to             
          dismiss the affected items for lack of jurisdiction.  Our                     
          dismissal was based on an analysis of the statutory scheme for                
          dealing with TEFRA partnerships.  That statutory scheme                       
          contemplated full resolution of partnership items, at the                     
          partnership-level proceeding, before there could be any partner-              
          level action, such as a notice of deficiency, based on affected               
          items.  Maxwell did not explicitly state that the notice of                   
          deficiency was invalid as to the affected items, but that appears             
          to be the only logical conclusion.  For example, if the notice                
          had been valid as to affected items and the petition had been                 





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