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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);
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Last modified: November 10, 2007