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152 (2001), and our September 4, 2002, order denying petitioner’s
motion for reconsideration.
Section references are to the Internal Revenue Code as in
effect for the years in issue. Rule references are to the Tax
Court Rules of Practice and Procedure.
Background
In N.Y. Football Giants, Inc. v. Commissioner, supra at 158,
we held that the built-in gains tax is a subchapter S item that
must be determined in a TEFRA proceeding for an S corporation and
that we lack jurisdiction as to petitioner’s tax years 1996 and
1997. We granted respondent’s motion to dismiss for lack of
jurisdiction and to strike petitioner’s tax years 1996 and 1997,
and denied petitioner’s cross-motion to dismiss for lack of
jurisdiction as to petitioner’s tax year 1997 as barred by the
statute of limitations. By subsequent order denying petitioner’s
motion for reconsideration, we rejected petitioner’s contention
that the tax matters person (TMP) lacks standing to engage in
litigation on behalf of an S corporation both as untimely and on
the merits. We also rejected petitioner’s contention that
respondent is estopped from denying that the built-in gains tax
is a subchapter S item because: (1) Equitable estoppel is an
affirmative defense that must be pleaded, and petitioner did not
plead estoppel; and (2) estoppel does not apply to
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