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would be irrelevant because: (1) In N.Y. Football Giants, Inc.
the Commissioner mailed a timely statutory notice of deficiency
to the taxpayer and determined the built-in gains tax in the
statutory notice of deficiency, and (2) even if the built-in
gains tax is a subchapter S item, the built-in gains tax would
need to be asserted in the FSAA and no such adjustment appears in
the FSAA in the case at bar.
In the case at bar, we held, supra pp. 5-6, that respondent
did determine an adjustment for the built-in gains tax in the
FSAA. Petitioner’s other argument in the reply essentially
claims that the built-in gains tax is not a subchapter S item and
that respondent must proceed via a statutory notice of deficiency
as opposed to an FSAA. In N.Y. Football Giants, Inc. v.
Commissioner, supra at 153, 158 and n.6, we concluded that the
built-in gains tax is a subchapter S item and that the
Commissioner should have issued an FSAA to the taxpayer instead
of a statutory notice of deficiency.
After our decision in N.Y. Football Giants, Inc., petitioner
submitted a supplemental reply to respondent’s response to motion
for partial summary judgment (supplemental reply). In the
supplemental reply, petitioner suggested that our decision in
N.Y. Football Giants, Inc. is irrelevant to the case at bar as
there are no legal similarities between the two cases.
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