Oliver K. Robinson and Deborah L. Robinson, et al. - Page 13




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         entity was reversed by the Court of Appeals for the Ninth                    
         Circuit.  Kelley v. Commissioner, 877 F.2d 756 (9th Cir. 1989),              
         revg. and remanding T.C. Memo. 1986-405.  In that case, the court            
         held that the Commissioner could not adjust a shareholder’s                  
         return on the basis of an adjustment to an S corporation’s return            
         when the statute had run on the corporation’s tax year.9  The                
         rationale underlying that appellate opinion was that the section             
         6501(a) 3-year period for assessment was to be applied at the                
         “source entity” level (S corporation).                                       
              This Court and some Courts of Appeals agreed with the                   
         Commissioner’s position that the relevant return for determining             
         whether the period for assessment had expired under section                  
         6501(a) is that of a taxpayer against whom the Commissioner has              
         determined a deficiency.  Fehlhaber v. Commissioner, 94 T.C. 863,            
         868 (1990) (S corporation), affd. 954 F.2d 653 (11th Cir. 1992);             
         Bufferd v. Commissioner, T.C. Memo. 1991-170 (S. corporation),               
         affd. 952 F.2d 675 (2d Cir. 1992), affd. 506 U.S. 523 (1993);                
         Siben v. Commissioner, T.C. Memo. 1990-435 (partnership), affd.              
         930 F.2d 1034 (2d Cir. 1991); Green v. Commissioner, 963 F.2d 783            
         (5th Cir. 1992) (S corporation), affg. Brody v. Commissioner,                


               9 Kelly v. Commissioner, 877 F.2d 756 (9th Cir. 1989), revg.           
          and remanding T.C. Memo. 1986-405, was one in a line of cases in            
          which taxpayers claimed losses with respect to their passthrough            
          entity.  These taxpayers had also extended the assessment period            
          as to their individual returns, but no extensions had been                  
          obtained for the passthrough entities, whose assessment period(s)           
          would have expired.                                                         




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