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similar situation and held that a 1999 FPAA was timely even
though the assessment period for that year had expired. See
Kligfeld Holdings v. Commissioner, 128 T.C. 192 (2007); see also
G-5 Inv. Pship. v. Commissioner, 128 T.C. 186 (2007). Petitioner
does not dispute that the FPAA was issued within 3 years of the
time the partners filed their respective 2000 and 2001 tax
returns. Accordingly, under the holding of Kligfeld Holdings and
similar cases, the assessment period has not expired and remains
suspended.
We note, however, that none of the above-cited cases was
appealable to the Court of Appeals for the Fifth Circuit.3 Under
the Golsen rule, we follow the law of the Court of Appeals to
which a case is appealable. Golsen v. Commissioner, 54 T.C. 742,
757 (1970), affd. 445 F.2d 985 (10th Cir. 1971). We therefore
consider whether we must reach a contrary result under Fifth
Circuit law.
In Weiner v. United States, 389 F.3d 152 (5th Cir. 2004),
the taxpayers appealed from decisions entered against them in
refund suits. The taxpayers earlier had been parties to
partnership-level proceedings in the Tax Court. Pursuant to
settlements of their claims to flow-through deductions from the
partnerships involved in those proceedings, the Commissioner
3 The parties agree that the instant case is appealable to
the Court of Appeals for the Fifth Circuit.
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