GAF Corporation and Subsidiaries - Page 22




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                              In Maxwell v. Commissioner, supra, we struck affected items                                                                                 
                    from the petition for lack of jurisdiction to determine those                                                                                         
                    items.  We made specific reference to section 6229(a) as                                                                                              
                    extending the period of limitations for assessing tax                                                                                                 
                    attributable to affected items.  See id. at 791 n.6, 793.  In                                                                                         
                    addition, after stating that resolution of the affected items                                                                                         
                    "must await the outcome of the partnership proceeding", we                                                                                            
                    observed:  "Apparently, in these circumstances respondent may                                                                                         
                    issue a second notice of deficiency to the partner determining an                                                                                     
                    additional deficiency attributable to ‘affected items.’"  Id. at                                                                                      
                    792.  We also noted that the Commissioner and the tax matters                                                                                         
                    partner had agreed to extend the section 6229(a) period for                                                                                           
                    assessing any tax attributable to any partnership item or                                                                                             
                    affected item.  See sec. 6229(b); Maxwell v. Commissioner, supra                                                                                      
                    at 786.  Thus, in Maxwell, we recognized that the Commissioner                                                                                        
                    suffered no serious disadvantage on account of our striking the                                                                                       
                    affected items from the petition.  If the Commissioner had issued                                                                                     
                    the FPAA before the extended section 6229 period expired, that                                                                                        
                    period would have been suspended as provided for in section                                                                                           
                    6229(d).  Moreover, the Commissioner was not prevented from                                                                                           
                    issuing another notice of deficiency.  See sec. 6230(a)(2)(C).                                                                                        
                              If, as I have concluded, the FPAA issued in Rhone-Poulenc                                                                                   
                    did not suspend the section 6501(e)(1)(A) limitations period                                                                                          
                    (assuming it is ultimately found to be applicable in this case),                                                                                      





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Last modified: May 25, 2011