PK Ventures, Inc. and Subsidiaries, et al. - Page 41

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               In respondent’s supplemental brief, filed August 12, 2004,             
          respondent attempted to amend respondent’s determination to                 
          include the $25,955 of constructive dividends in the Roses’ basis           
          in their Zephyr interest and thus increase the deficiency                   
          determined against the Roses.  Respondent did not seek to raise             
          this new position at or before trial of these cases.                        
          Furthermore, respondent had not argued that respondent’s                    
          determination to treat a portion of the transfers from PK                   
          Ventures, TBPC, and TPTC to Zephyr as a constructive dividend to            
          the Roses was incorrect.                                                    
               In their memorandum in support of their motion for                     
          reconsideration of findings and opinion, filed 2 months after               
          release of our now-withdrawn opinion, petitioners contended for             
          the first time that the statutory notice of deficiency sent to              
          the Roses--                                                                 
               is invalid to the extent it excludes from the Roses’                   
               basis in Zephyr a proportionate share of Zephyr’s                      
               excluded COD income.  Moreover, since respondent failed                
               to adjust Zephyr’s excluded COD income in a FSAA issued                
               to Zephyr, this Court did not have jurisdiction to                     
               sustain respondent’s adjustment.  To be clear,                         
               petitioners do not argue that the Court is without                     
               jurisdiction to determine the Roses’ outside basis in                  
               Zephyr.  Rather, petitioners argue only that the Court                 
               did not have jurisdiction to determine the Roses’ (or                  
               any other shareholder’s) share of Zephyr’s excluded COD                
               income in a shareholder level proceeding.                              
          At the time of hearing on petitioners’ motion for                           
          reconsideration, the parties agreed that the Court lacked                   
          jurisdiction to redetermine the Roses’ basis in their Zephyr                





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