Rodney J. and Noreen E. Blonien - Page 26




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          issue disposed of in a way that would have allowed him to                   
          participate in the determination.  Therefore, petitioners have no           
          standing to assert that they have been deprived of due process on           
          the grounds they did not have a prior opportunity to dispute Mr.            
          Blonien’s partnership status.                                               
          We Also Lack Jurisdiction To Consider Petitioners’ Argument That            
          the Issuance of the FPAA Was Not Timely                                     
               In their petition to this Court, petitioners also challenged           
          the timeliness of the FPAA, arguing that the TMP’s extensions of            
          the period of limitations were invalid.  After petitioners filed            
          their petition, we issued our decision in Overstreet v.                     
          Commissioner, T.C. Memo. 2001-13, affd. in part and dismissed in            
          part 33 Fed. Appx. 349 (9th Cir. 2002), in which we held that a             
          Finley Kumble partner did not have standing in a partner-level              
          proceeding to challenge the timeliness of the FPAA.  We held that           
          expiration of the period of limitations for issuance of the FPAA            
          is an affirmative defense that must be raised in a partnership-             
          level proceeding.                                                           
               At trial, petitioners and respondent stipulated to be bound            
          by the final decision in the Overstreet case.  Our decision in              
          Overstreet is now final, as a result of dismissal of the                    
          taxpayer’s untimely appeal by the Court of Appeals for the Ninth            
          Circuit.  See 33 Fed. Appx. 349 (9th Cir. 2002).  On the basis of           
          the parties’ stipulation in the case at hand, petitioners cannot            
          challenge in this proceeding the validity and timeliness of the             





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