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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).
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