-7- correctly in picking the TEFRA audit procedure for JTA. The reason for this is that Nehrlich’s challenge is a challenge to the Commissioner’s authority to assess the increase in tax caused by that disallowance. He asserts that JTA was a small partnership, so that the Commissioner’s application of TEFRA audit procedures led to an invalid assessment and any later collection efforts were therefore improper. See Freije v. Commissioner, 125 T.C. 14, 36 (2005) (collection actions related to an invalid assessment may not proceed). This is not a bad technical argument, because the Code draws the line between small and TEFRA partnerships in a somewhat odd way: TEFRA applies its audit procedures only to “partnership items,” sec. 6221, which are defined to exist only with respect to partnerships, sec. 6231(a)(3). TEFRA then defines “partnership” to exclude small partnerships, sec. 6231(a)(1)(B), and this then excludes them from TEFRA procedures because a small partnership would have only nonpartnership items, see sec. 6231(a)(4); Maxwell, 87 T.C. at 788. The Commissioner can generally challenge nonpartnership items only through the deficiency process--as we said in Freije, the Commissioner’s failure to show that a deduction’s disallowance fell within some exception “to the proscription of section 6213(a) on assessments without deficiency procedures is fatal.” Freije, 125 T.C. at 35.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 NextLast modified: November 10, 2007