Thomas J. Nehrlich - Page 7




                                         -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  Next 

Last modified: November 10, 2007