New York Football Giants, Inc. - Page 2




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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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