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corporation). See sec. 301.7701-3(b)(1)(i), Proced. & Admin.
Regs. We infer that petitioner has made no such election and for
tax purposes is to be treated as a partnership.10 Such
classification for tax purposes, however, has no effect on the
legal status of the ownership of LLC assets and provides no basis
for disregarding petitioner’s separate identity from the
Conways’. See Gilliam v. Speier (In re KRSM Props., LLC), 318
Bankr. 712, 718-719 (B.A.P. 9th Cir. 2004). More fundamentally,
regardless of petitioner’s classification as a partnership for
Federal tax purposes, petitioner is the “employer” within the
meaning of section 3403; accordingly, the liability for the
employment taxes is petitioner’s and not the Conways’. See
United States v. Galletti, 541 U.S. 114, 121 (2004). Because
petitioner is a separate entity from the Conways, the imposition
of employment tax on petitioner cannot be viewed as equivalent to
the imposition of employment tax on its members. See id.
Accordingly, the automatic stay provision of 11 U.S.C. section
362(a)(8) is inapplicable to this case.
In “unusual circumstances”, a bankruptcy court may properly
stay a proceeding against a nonbankrupt third party, if “there is
such identity between debtor and the third-party defendant that
the debtor may be said to be the real party defendant and that a
10 Attached as an exhibit to respondent’s Rule 91(f) motion
is a Form 1065, U.S. Partnership Return of Income, which
respondent alleges petitioner filed for taxable year 1999.
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