- 128 - 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in support of their motion for reconsideration of findings and opinion, filed 2 months after release of our now-withdrawn opinion, petitioners contended for the first time that the statutory notice of deficiency sent to the Roses-- is invalid to the extent it excludes from the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 ZephyrPage: Previous 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 Next
Last modified: May 25, 2011