Barry and Carolina Gustin - Page 8




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               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 the                     






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