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respondent can issue an FPAA and suspend the 3-year minimum
period pursuant to section 6229(d).
E. Policy Considerations
My interpretation of Congress’ intent based on the plain
language of section 6229(d) is consistent with what I believe
Congress intended to accomplish in enacting the TEFRA partnership
provisions. In Chef’s Choice Produce, Ltd. v. Commissioner, 95
T.C. 388, 393 (1990), we described Congress’ intent as follows:
In enacting the partnership audit and litigation
procedures, Congress contemplated the use of a unified
proceeding in which all items of partnership income,
loss, deduction, or credit that affect each partner’s
tax liability would be uniformly adjusted at the
partnership level. * * *
We reached the following conclusion: “In the litigation context,
Congress adopted the so-called ‘entity theory’ of partnership
jurisprudence.” Id. (quoting Tempest Associates, Ltd. v.
Commissioner, 94 T.C. 794, 802 (1990)).
My reading of the period specified in subsection (a) as the
3-year minimum period is consistent with the application of an
entity theory to the litigation of partnership items. In my
view, policy dictates that the period for issuing an FPAA that
can automatically affect all of the partners should be the 3-year
minimum period, which is keyed to the partnership return. Under
the majority’s interpretation of the period specified in
subsection (a) as the later-to-end period, the aggregation of
partners, each asserting an individual defense to the
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