- 4 - returns and, therefore, the assessment period for those years has not expired. 2. Respondent’s Motion for Summary Judgment and Petitioner’s Motion for Leave To File A Second Amended Petition The FPAA makes a number of adjustments to the 1999 partnership return. Although the petition asserts that the FPAA was untimely, it does not assign error to the determination that the partnership was a sham or to the other adjustments discussed above. Respondent filed a motion for summary judgment, asserting that any issues not raised in the petition are deemed conceded under Rule 34(b)(4). After respondent had filed the motion for summary judgment, petitioner filed a motion for leave to file a second amended petition. The motion states that “Petitioner wishes to amend its petition to more particularly comply with [Rule] 34(b)(4) by alleging further factual basis for respondent’s various errors as contained in * * * [the FPAA].” The proposed second amended petition assigns error to each adjustment in the FPAA. Discussion I. Whether the Assessment Period Has Expired Summary judgment is appropriate “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Rule 121(b);Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: November 10, 2007