Rhone Poulenc Surfactants and Specialties, L.P. - Page 44




                                        - 44 -                                        
          II.  Dispute With the Majority                                              


               Section 6229(d) provides that, upon the mailing of an FPAA             
          to the tax matters partner, "the running of the period specified            
          in subsection (a) * * * shall be suspended".  On the facts of               
          this case, there are three candidates for “the period specified             
          in subsection (a)” (the period specified in subsection (a)).                


               1(...continued)                                                        
          majority’s holdings that (1) with respect to the assessment of              
          deficiencies attributable to partnership items and affected                 
          items, sec. 6229(a) provides an alternative, minimum period of              
          limitations to the period set forth in sec. 6501(a), and (2) the            
          Sept. 12, 1997, notice of final partnership administrative                  
          adjustment suspended the running of the 6-year period (assuming             
          it is applicable).  I agree with the majority’s first holding.              
          With respect to that holding, Judges Parr and Foley, apparently             
          believing that the statute is clear on its face, have failed to             
          answer the majority’s analysis that sec. 6501(a) unequivocally              
          provides the period of limitations within which the amount of any           
          tax shall be assessed and, with respect to tax attributable to              
          partnership items and affected items, sec. 6229(a) merely                   
          provides that such sec. 6501 period shall not expire “before” a             
          certain date.                                                               
               Moreover, sec. 6222(a) provides that a partner shall, on the           
          partner’s return, treat a partnership item consistently with the            
          treatment of that item on the partnership’s return (the                     
          consistency requirement).  Failure to comply with the consistency           
          requirement opens the partner to the immediate assessment of any            
          deficiency attributable to such inconsistency.  See sec. 6222(c).           
          Failure to comply with the consistency requirement is not taken             
          into account under sec. 6229.  Therefore, if, as Judges Parr and            
          Foley imply, sec. 6229 provides the exclusive period of                     
          limitations for assessing tax with respect to partnership items             
          and affected items, inconsistent treatment of partnership items             
          provides no basis for an extended period of limitations under               
          sec. 6501.  It is difficult to believe that Congress intended               
          such a result in the case of a fraudulent inconsistency or an               
          inconsistency resulting in a substantial omission of income.  See           
          sec. 6501(c)(1), (e)(1).                                                    





Page:  Previous  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  Next

Last modified: May 25, 2011