Barry and Carolina Gustin - Page 6




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          under section 704(d).  Respondent argues that a partnership-level           
          proceeding was not required to determine Mr. Gustin’s basis and             
          to apply the loss limitations.  Respondent states that he does              
          not intend to issue an FPAA, that he can no longer make                     
          adjustments to partnership items for Annona’s 1997 tax year, that           
          he accepts the partnership’s treatment of partnership items, and            
          that partnership-level proceedings are completed when he accepts            
          the partnership’s treatment of partnership items without                    
          adjustment.                                                                 
               The instant case is similar to Roberts v. Commissioner, 94             
          T.C. 853 (1990).  In Roberts, the Commissioner did not commence a           
          partnership-level examination, did not issue an FPAA, and did not           
          otherwise seek to adjust the partnership items reported on the              
          partnerships’ returns.  The notice of deficiency was issued on              
          April 9, 1987, disallowing partnership losses claimed by the                
          taxpayers because of alleged stop-loss agreements with third                
          parties.  See sec. 465(b)(4).  On April 15, 1987, the period of             
          limitations for assessing a tax attributable to any partnership             
          item under section 6229(a) expired.  On July 6, 1987, the                   
          taxpayers filed their petition and then filed a motion to dismiss           
          for lack of jurisdiction.                                                   
               In Roberts v. Commissioner, supra at 861-862, we held that             
          side agreements for purposes of the section 465 at-risk                     








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