- 8 - a notice of deficiency issued prior to the completion of the partnership-level proceeding is invalid to the extent it relates to a partnership item or an affected item. No FPAA was issued by respondent and no partnership-level proceedings have been commenced regarding the prepetition partnership losses in the present case. Accordingly, if the NOL carryovers at issue constitute affected items as petitioners contend, we must grant the motion to dismiss on the basis that the notice of deficiency is invalid as it relates to those items. * * * [Citation omitted.] The language cited by petitioners was unnecessary for the disposition of that case and should be viewed in its context. In Katz v. Commissioner, supra at 10, we stated the issue as follows: whether the manner in which partnership items are allocated between a partner in bankruptcy and the partner’s bankruptcy estate is a determination which, pursuant to the TEFRA procedures, must be made at the partnership level. We therefore shall determine our jurisdiction based on the resolution of this latter issue. We held: The manner in which the distributive share of a partner in bankruptcy is allocated between the partner and the bankruptcy estate is not a “partnership item” under sec. 6231(a)(3), I.R.C. Accordingly, such allocation need not be resolved in a partnership-level proceeding pursuant to the uniform audit and litigation procedures of secs. 6221-6234, I.R.C. * * * [Id. at 5.] Our holding in Katz did not depend on the status of the NOL carryover as an “affected item”, and we did not make a determination that the NOL carryovers were not affected items. However, since the Commissioner was not challenging thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011