- 8 -
Petitioner, in the supplemental reply, provides no analysis to
support this conclusion.
Respondent contends that N.Y. Football Giants, Inc. is
controlling authority and that petitioner raised the same legal
issue in the case at bar as was in issue in N.Y. Football Giants,
Inc.--whether the built-in gains tax is a subchapter S item and
whether the TEFRA audit and litigation procedures apply. We
agree.
Although the factual posture of this instant case is the
converse of that in N.Y. Football Giants, Inc.,7 that does not
affect the legal conclusion that the built-in gains tax is a
subchapter S item and that the TEFRA audit and litigation
procedures apply.8
2. Statute of Limitations
Petitioner contends that the assertion of a built-in gains
tax by the IRS against KRP is time barred because the IRS did not
issue a statutory notice of deficiency determining liability for
the built-in gains tax to KRP on or before June 30, 2000, and no
7 In the instant case, respondent issued an FSAA to
petitioner and not a statutory notice of deficiency; in N.Y.
Football Giants, Inc. v. Commissioner, supra at 154, the
Commissioner issued a statutory notice of deficiency to the
taxpayer and not an FSAA.
8 Furthermore, we note that although the factual situations
were the converse of each other, respondent took consistent
positions in both--that the correct procedure was to issue an
FSAA and not a statutory notice of deficiency. N.Y. Football
Giants, Inc. v. Commissioner, supra at 154.
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