GAF Corporation and Subsidiaries - Page 14




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               partnership proceeding.”  Maxwell v. Commissioner,                       
               supra at 788.  (Emphasis added.)  We further explained                   
               that under the rules of the Tax Court “[this] ‘Court                     
               does not have jurisdiction of a partnership action’ if                   
               no FPAA has been issued.”  Maxwell v. Commissioner,                      
               supra at 788.  Because no FPAA had been issued to the                    
               partnership, we did not have jurisdiction to                             
               redetermine any portion of a deficiency attributable to                  
               partnership items.  Maxwell v. Commissioner, supra at                    
               789.                                                                     
                    We did not, however, conclude in Maxwell that if                    
               respondent had issued an FPAA to the partnership, we                     
               would have had jurisdiction to redetermine the portion                   
               of the deficiency attributable to both partnership and                   
               nonpartnership items in a single proceeding.  Rather,                    
               we concluded that we would only have jurisdiction to                     
               redetermine partnership items in a separate partnership                  
               proceeding if respondent had issued an FPAA [to] the                     
               partnership.  Consequently, we reject petitioners’                       
               contention that partnership items may be litigated in a                  
               nonpartnership proceeding if an FPAA has been issued to                  
               the partnership before a partner’s petition is                           
               filed.[10]                                                               
          In Trost, the taxpayers argued that if we did not retain                      
          jurisdiction to determine overpayments attributable to the                    



               10Respondent’s position in the instant case is also                      
          inconsistent with the position he recently took in the case of                
          Kanter v. Commissioner, docket No. 7553-99, where on Apr. 21,                 
          2000, respondent filed a motion to dismiss for lack of                        
          jurisdiction.  In Kanter, the Commissioner had issued a notice of             
          deficiency for an affected item after we had entered a decision               
          in the related partnership proceeding, but before our decision                
          had become final.  (The Court of Appeals subsequently affirmed                
          our decision in the partnership case.)  Nevertheless, the                     
          Commissioner moved to dismiss the deficiency case arguing that                
          the notice of deficiency was invalid because the Commissioner had             
          no authority to issue the notice of deficiency regarding affected             
          items until after the decision in the partnership proceeding had              
          become final.  The Commissioner cited Dubin v. Commissioner, 99               
          T.C. 325 (1992), and Maxwell v. Commissioner, 87 T.C. 783 (1986),             
          in support of his motion to dismiss.                                          





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