Thomas J. Nehrlich - Page 8




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               This argument, though, rests entirely on whether JTA met               
          TEFRA’s definition of a “small partnership.”  See sec.                      
          6231(a)(1)(B).  For the 1995 tax year, this definition set two              
          tests.  The first was whether JTA had ten or fewer partners, each           
          of whom was a natural person or the estate of a dead partner.               
          Sec. 6231(a)(1)(B)(i)(I).  The Commissioner concedes JTA passed             
          this test.                                                                  
               The second test for the 1995 tax year was whether JTA                  
          allocated each item to each partner the same way.  This “same-              
          share” requirement meant, for example, that a one-third partner             
          had to get one-third of the partnership’s income and deductions;            
          if he got one-third of the income, but one-half of even one of              
          the deductions, the partnership would be subjected to TEFRA.5               
          Sec. 6231(a)(1)(B)(i)(II).  Nehrlich claims that the Commissioner           
          was wrong to flunk JTA on the same-share test.  He reasons that a           
          partnership’s “guaranteed payments”6 were not subject to the                
          same-share requirement, and that JTA’s health insurance premiums            
          were “guaranteed payments.”  Nehrlich is correct that guaranteed            
          payments are not one of the items used in a same-share analysis.            
          See sec. 301.6231(a)(1)-1T(a)(3), Temporary Proced. & Admin.                


               5 The same-share requirement was removed from section                  
          6231(a)(1)(B)(i) by the Taxpayer Relief Act of 1997, Pub. L. 105-           
          34, sec. 1234(a), 111 Stat. 1024.                                           
               6 Guaranteed payments are payments made to a partner without           
          regard to the partnership's income.  Sec. 707(c).                           






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