- 23 -- 23 -
this case does not fit within the statutory pattern that applied
in Maxwell v. Commissioner, supra, because the section 6229
3-year minimum period has already expired. If we strike the
affected items from the petition in this case (leaving no
deficiency in tax for redetermination), invalidate the notice,
and dismiss the case in petitioner’s favor, we are, in effect,
deciding the partnership case in favor of the participating
partner. Stated another way, the substantive dispute in the
partnership case would already have become moot because
respondent would be precluded from assessing any computational
adjustments.3 That possibility leads me to reject the majority’s
adoption of the Maxwell rationale that Congress intended a full
resolution of partnership items before any affected items notice
of deficiency could validly be issued.
In the Maxwell line of cases, we held the notice of
deficiency to be "invalid" and dismissed the petition for lack of
jurisdiction on the ground that the notice and the petition, to
the extent they involved affected items, were premature because
3 In this case, the 6-year period provided for in sec.
6501(e)(1)(A) had only 3 days to run when respondent issued the
statutory notice and, concurrently, issued to the tax matters
partner the final partnership administrative adjustment (FPAA).
But even in a case where the FPAA was issued months, or even
years, prior to the expiration of the applicable sec. 6501 period
of limitations, unless within the minimum period of sec. 6229(a),
the Commissioner, in order to suspend the sec. 6501 period, may
have to issue a notice of deficiency before the FPAA is resolved.
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