Amici Argue Lack of Notice to Tax Matters Partner Nullifies Executed Agreements
Amici Argue Lack of Notice to Tax Matters Partner Nullifies Executed Agreements
- Case NameRICHARD K. PHILIPS AND MARILYN J. PHILLIPS, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
- CourtUnited States Court of Appeals for the Ninth Circuit
- DocketNo. 00-70850
- AuthorsPearson, Wendy S.
- Institutional AuthorsPearson, Merriam & Kovach, P.C.
- Cross-ReferencePhillips v. Commissioner, 114 T.C. 115 (2000)
- Code Sections
- Subject Area/Tax Topics
- Index Termspartnerships, tax matters partner
- Jurisdictions
- LanguageEnglish
- Tax Analysts Document NumberDoc 2000-30017 (31 original pages)
- Tax Analysts Electronic Citation2000 TNT 232-52
=============== SUMMARY ===============
In an amicus curiae brief for the Ninth Circuit, a group of individuals has argued that under section 6231, the IRS is required to notify a tax matters partner under criminal investigation that his partnership items are to be treated as nonpartnership items.
The amici are a group of taxpayers who are partners in numerous partnerships organized and managed by Walter J. Hoyt III. In this respect they are similarly situated to the appellants Richard and Marilyn Phillips. Not only are amici partners in a number of the Hoyt partnerships, they are also parties to the Hoyt partnership cases pending before the Tax Court.
As tax matters partner, Hoyt served as the partnerships' representative for purposes of the TEFRA audits and case processes. Hoyt, acting in his fiduciary capacity as tax matters partner, also executed statute of limitations extensions extending the time for the IRS to assess taxes against the Phillipses and others, including amici. In one of their own cases before the Tax Court, amici filed a motion for summary judgment, arguing that under reg. section 1.6231(c)-5T, Walter Hoyt as tax matters partner lacked the legal capacity to bind them to agreements with the IRS because he was under criminal investigation or otherwise suffered from a debilitating conflict of interest. The Tax Court denied the motion based on Phillips v. Commissioner, 114 T.C. 115 (2000) and the finding that genuine issues of fact exist. Amici state that the outcome of the Phillips case will affect their pending cases, even though they have proffered different legal arguments than the Phillips. (For a summary of that opinion, see Tax Notes, Mar. 6, 2000, p. 1391; for the full text, see Doc 2000-6047 (32 original pages) or 2000 TNT 41-18 .)
The amicus brief states that the amici now want to present a legal argument in the Phillips case that has not been made by either of the parties. Their argument is that under section 6231 the IRS is required to notify a tax matters partner under criminal investigation that his partnership items are to be treated as nonpartnership items. The brief maintains that reg. section 6231(c)-5-T mandates this notice to the tax matters partner be made within a reasonable period of time under due process considerations. The amicus brief further argues that the government's violation of this reg renders agreements entered into by Walter Hoyt a legal nullity and the IRS is estopped from binding partners to any such agreements.
=============== FULL TEXT ===============
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Tax Court No. 9354-96
AMICUS CURIAE BRIEF
APPEAL FROM THE UNITED STATES TAX COURT
The Honorable Howard A. Dawson, Jr.
Tax Court Judge
TABLE OF CONTENTS
I. IDENTITY OF AMICI
II. ISSUE PRESENTED
III. STATEMENT OF FACTS NOT PRESENTED BY PETITIONERS
VI. [sic] ARGUMENT
A. The Unified Partnership Audit Rules Require that the TMP Be Capable of Operating as the Partnership's Fiduciary
B. Interpreting The Special Enforcement Regulation As Requiring Notice Converting Partnership Items of TMP Under Criminal Investigation is Consistent With Congressional Intent and Due Process
1. Temp. Treas. Reg. section 6231(c)-5-T Mandates Notice to
the TMP Converting His Partnership Items
2. The Regulation Mandates Notice to the TMP By Reason of
Due Process Requirements
3. Notice of the Conversion Must Be Issued Within a
Reasonable Period of Time
C. Respondent's Violation of Treas. Reg. section 6231(c)- 5T Renders Agreements by Jay Hoyt a Legal Nullity
V. CONCLUSION
TABLE OF AUTHORITIES
CASES:
Anderson v. U.S., 72 AFTR 2d 5249 (N.D. Cal 1993)
Chevron U.S.A., Inc. vs. Natural Resources Defense Council, Inc. 467
U.S. 837, 845 (1984)
Commissioner v. Netcher, 143 F.2d 484, 487 (7th Cir. 1944); cert.
den., 323 U.S. 759 (1944)
Computer Programs Lambda v. Commissioner, 89 T.C. 198 (1987)
Cramer v. Commissioner, 101 T.C. 225, 247 (1993), affd, 64 F.3d 1406
(9th Cir. 1995)
Duke v. University of Texas, 663 F.2d 522, 526 (5th Cir. 1981)
Estate of La Sala v. Commissioner, 71 T.C. 752, 763-764 (1979)
Fredericks v. Commissioner, 126 F.3d 433 (3rd Cir. 1997)
Hewitt v. Helms, 459 U.S. 460, 471-472 (1983)
Idaho First National Bank, et al. v. Commissioner, 997 F.2d 1285 (9th
Cir. 1993)
Johnson v. Burnley, 887 F.2d 471, 476 (4th Cir. 1989)
Morton v. Ruiz, 415 U.S. 199, 235. [sic] (1974)
Pearce v. Director, Office of Worker's Compensation Programs, et al.,
647 F.2d 716 (7th Cir. 1981)
Phillips Petroleum v. Shutts, 472 U.S. 797 (1985)
Phillips v. Commissioner, 114 T.C. 115 (2000)
Seneca, Ltd. v. Commissioner, 92 T.C. 363 (1989)
Sriram v. Preferred Income Fund III Ltd. Partnership, 22 F.3d 498 (2d
Cir. 1994)
Time Oil Co. v. Commissioner, 258 F.2d 237 (9th Cir. 1958)
Udall v. Tallman, 380 U.S. 1 (1965)
Whelan v. United States, 529 F.2d 1000 (Ct. Cl. 1976)
STATUTES:
26 U.S.C. section 6226(c)
26 U.S.C. section 6230(c)(4)
26 U.S.C. section 6231(a)(6)
26 U.S.C. section 6231(a)(7)
26 U.S.C. section 6231(c)
26 U.S.C. sections 6223 and 6226
26 U.S.C. section 6224(c)(3)
REGULATIONS AND OTHER AUTHORITIES:
Temporary Regulation 301.6231(c)-5T
Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248,
Sec. 402 (at 96 Stat. 324, 628)
I. IDENTITY OF AMICI
[1] Amici are similarly situated to petitioners/Appellants ("Appellants") as they are among a group of over 4000 taxpayers who were partners in numerous partnerships organized and managed by Walter J. Hoyt, III ("Hoyt"). Amici are partners in one or more of the Hoyt partnerships 1 and are parties to the Hoyt partnership cases pending before the United States Tax Court. As Tax Matters Partner, Hoyt served as the partnerships' representative for the purposes of the TEFRA audit and case process. As in the case of Appellants, Jay Hoyt, acting in a fiduciary capacity as Tax Matters Partner ("TMP"), executed statute of limitations extensions extending the time for the I.R.S. to assess taxes Amici.
[2] Like Appellants, Amici have been subject to and effected by the actions of Jay Hoyt as TMP in the processing of their partnership's tax cases before the I.R.S., including personal tax assessments against Amici that were predicated on agreements made by the TMP with the I.R.S. In the Tax Court proceedings Amici have raised similar legal issues to Appellants around the legal capacity of Jay Hoyt as TMP to bind Amici to agreements with the I.R.S. by reason of the operation of Treas. Reg. 1.6231(c)-5T when he is under criminal investigation or otherwise suffers from a debilitating conflict of interest. The Tax Court denied Amici's Motion for Summary Judgment based on Phillips v. Commissioner, 114 T.C. 115 (2000), as well as a finding that genuine issues of fact exist. As illustrated by the Tax Court's order, the outcome of this captioned case will effect Amici's pending cases, even though Amici have proffered different legal arguments than Appellants and respondent/Appellees ("respondent") in this case. Amici desire to present a legal argument that has not been made by either Appellants or respondent.
II. ISSUE PRESENTED
[3] Whether Internal Revenue Code section 6231(c) and Temporary Regulation 301.6231(c)-5T REQUIRES the Commissioner of Internal Revenue Service ("I.R.S.') to notify a Tax Matters Partner ("TMP") under criminal investigation that his partnership items are to be treated as nonpartnership items.
III. STATEMENT OF FACTS NOT PRESENTED BY PETITIONERS
[4] Amici generally concur with Appellants' summary of the facts as presented in their Tax Court case. However, Appellants did not directly address the Tax Court's holding that Hoyt did not have, as a matter of fact (not law), a conflict of interest. In their Motion for Summary Judgment, Amici have proffered additional evidence pertaining to Jay Hoyt's conflict of interest which may not have been offered, or available to offer, by Appellants in the captioned case. While Amici understand that this additional evidence is unavailable for this Court's consideration in the captioned case, Amici desire to make this court aware that other evidence to establish Jay Hoyt's debilitating conflicts of interest exists for the same partnerships at issue in this captioned case. This is important, because the Second Circuit has held that a TMP is rendered legally incapable of operating as the TMP if he has a conflict of interest, regardless of the operation of Temporary Regulation 301.6231(c)-5T. Transpac Drilling Venture 1982-12 v. Commissioner, 147 F.3d 221 (2d Cir. 1998). Amici continue to pursue this argument in their pending cases. Also important is the fact that the I.R.S. is now arguing that the Tax Court's finding in Phillips v. Commissioner (that no conflict of interest in fact existed in this case) binds Amici in their pending case. Since Amici's pending cases, which include additional evidence of Hoyt's conflict of interest, are appealable to this Court, Amici urge this Court, should it affirm the Tax Court that the criminal investigation of Jay Hoyt is insufficient factual evidence of a conflict of interest, to limit such affirmance to the evidence before it and not broadly rule that the criminal investigation of a TMP does not cause a conflict of interest.
IV. ARGUMENT
A. THE UNIFIED PARTNERSHIP AUDIT RULES REQUIRE THAT THE TMP BE CAPABLE OF OPERATING AS THE PARTNERSHIP'S FIDUCIARY.
[5] In 1982, Congress enacted the Partnership Audit Rules which provide that the tax treatment of partnership items of income, gain, loss, deduction and credit would be determined in a unified partnership proceeding, rather than separate proceedings for each partner thereof. 2 To that end, the audit rules provide that each partnership will designate a general partner to serve as Tax Matters Partner ("TMP") through whom the I.R.S. will give notice and process of the partnership audit. 26 U.S.C. section 6231(a)(7). The I.R.S. issues a Final Partnership Administrative Adjustment ("FPAA") which sets forth its determination of proposed tax adjustments to the partnership and only the TMP (and certain other qualifying partners of which there were none in the instant case) may petition a court for review of the determinations. 26 U.S.C. sections 6223 and 6226. The treatment of the partnership items under the FPAA, settlement agreement or court decision is conclusive and binding on the partners, and not subject to substantive review. 26 U.S.C. sections 6224(c)(3), 6226(c), 6230(c)(4) and 6231(a)(6).
[6] The TMP has a pivotal role in assuring the partners are accorded their opportunity for substantive review of partnership items. The TMP's role was amplified by the Tax court in Computer Programs Lambda v. Commissioner, 89 T.C. 198 (1987), where the court advised:
The tax matters partner is the central figure of
partnership proceedings. . . . the tax matters partner serves as
the focal point for service of all notices, documents, and
orders on the partnership . . .
In the execution of these responsibilities, a tax matters
partner acts as a fiduciary. His personal interest, if any, is
beside the point. The precision of section 6231(a)(7)(B) in
setting the procedure for identifying a tax matters partner when
the partnership has not done so demonstrates the importance
Congress gave to the role of the tax matters partner in
partnership proceedings. The detailed statutory procedures for
partnership level audits and litigation contemplate the
continual presence of one tax matters partner, and THE
PROCEDURES CANNOT OPERATE UNLESS THE TAX MATTERS PARTNER IS
CAPABLE OF ACTING ON THE PARTNERSHIP'S BEHALF REGARDLESS OF HIS
PERSONAL TAX POSTURE. As the fiduciary of the partnership's
interest in the proceeding, the tax matters partner's initiative
(or failure to take initiative) is plainly designed to affect
the rights of all partners in the partnership.
89 T.C. at 205-206. [emphasis added]
[7] Thus, the TMP acts like a class-action representative and, as such, his interests must not be at odds with the partners he represents. Computer Programs Lambda, 90 T.C. 1124, 1127 (1988). Accordingly, Congress and the I.R.S. have identified certain circumstances where the actions personally affecting the TMP will interfere with the fair, effective and efficient audit of the partnerships.
B. INTERPRETING THE SPECIAL ENFORCEMENT REGULATION AS REQUIRING NOTICE CONVERTING PARTNERSHIP ITEMS OF TMP UNDER CRIMINAL INVESTIGATION IS CONSISTENT WITH CONGRESSIONAL INTENT AND DUE PROCESS.
1. TEMP. TREAS. REG. SECTION 6231(c)-5-T MANDATES NOTICE TO
THE TMP CONVERTING HIS PARTNERSHIP ITEMS.
[8] Both Congress and the I.R.S. recognize that certain matters involving the TMP "will interfere" with the audit of a partnership. Criminal investigations of a TMP present "special enforcement" areas addressed by statute at 26 U.S.C. section 6231(c). The statute provides in pertinent part:
(1) Applicability of subsection. This subsection
applies in case of . . . (B) criminal investigations, . . .
(2) Items may be treated as nonpartnership items. To
the extent that the Secretary determines and provides by
regulations that to treat items as partnership items will
interfere with the effective and efficient enforcement of
this title in any case described in paragraph (1), such
items shall be treated as nonpartnership items for the
purposes of this subchapter.
26 U.S.C. section 6231(c)(2) [Emphasis added.]
[9] The statute provides that with respect to criminal investigations (among other special enforcement areas), once the Secretary determines by regulation that criminal investigations of partners "will interfere" with the effective and efficient enforcement of TEFRA, then that partner's partnership items "shall be treated as nonpartnership items." 26 U.S.C. 6231(c)(2). This direction is mandatory. Many courts, including the Supreme Court, have found that the word "shall" is unmistakably mandatory. See, Hewitt v. Helms, 459 U.S. 460, 471-472 (1083); Johnson v. Burnley, 887 F.2d 471, 476 (4th Cir. 1989); Estate of La Sala v. Commissioner, 71 T.C. 752, 763-764 (1979).
[10] Under this statutory authority, the I.R.S. authored the following regulation:
The treatment of items as partnership items with respect to a
partner under criminal investigation for the violation of the
internal revenue laws relating to income tax WILL INTERFERE with
the effective and efficient enforcement of the internal revenue
laws. ACCORDINGLY, partnership items of such a partner arising
in any partnership taxable year ending on or before the last day
of the latest taxable year of the partner to which the criminal
investigation relates SHALL BE TREATED as nonpartnership items
as of the date of which the partner is notified that he or she
is the subject of criminal investigation and receives written
notification from the Service that his or her partnership items
shall be treated as nonpartnership items. The partnership items
of a partner who is notified that he or she is the subject of a
criminal investigation shall not be treated as nonpartnership
items under this section unless and until such partner receives
written notification from the Service of such treatment.
Temp. Treas. Reg. section 301.6231(c)-5T Criminal Investigations (Temporary) [Emphasis added]. 3
[11] The regulation unequivocally states that criminal investigations of a partner WILL interfere with the enforcement of the internal revenue laws. The regulation does not provide any exceptions to the stated rule. Having found that the criminal investigation "will interfere," and in following the statute at 26 U.S.C. section 6231(c)(2), the regulation states the partnership items SHALL be converted to nonpartnership items
[12] Rules of statutory construction apply to regulations. Idaho First National Bank, et al. v. Commissioner, 997 F.2d 1285 (9th Cir. 1993); "Whelan v. United States, 529 F.2d 1000 (Ct. Cl. 1976). The regulation must be interpreted in the same manner and consistent with the governing statute. Commissioner v. Netcher, 143 F.2d 484, 487 (7th Cir. 1944); cert. den., 323 U.S. 759 (1944) (court must not give a regulation as [sic] construction which would violate or contradict the language of the statute). Thus, the only permissible construction is one that effectuates the mandate that the partnership items be converted when it is concluded that treating them as partnership items interferes with the TEFRA audit.
[13] The Secretary had the discretion to determine if criminal investigations of partners would interfere with the TEFRA audit. But, once the Secretary made that determination (which it did in the regulation), the STATUTE REQUIRES that the partnership items "shall" be converted and does not allow any discretion whether or not the partner should receive notice converting his partnership items. It simply states that a criminal investigation will interfere and then describes the notification process. To interpret the regulation as providing some discretion whether to send the notice sets the statutory scheme and purpose on its head.
[14] The regulation and statute must be construed to give effect to the intent of Congress. Cramer v. Commissioner, 101 T.C. 225, 247 (1993), affd, 64 F.3d 1406 (9th Cir. 1995). The intent of Congress was to ensure a fair, efficient, and consistent administration of partnership actions in the event a TMP is nonexistent, terminated or unable to discharge his fiduciary duties. I.R.C. sections 6221-6231; Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, Sec. 402 (at 96 Stat. 324, 628). Respondent "has a public duty to assure the fairness of the partnership's administrative proceedings." Seneca, Ltd. v. Commissioner, 92 T.C. 363 (1989). This public duty is necessarily abrogated if Temp. Treas. Reg. section 6231(c)-5T is interpreted to mean respondent has discretion to rectify a situation where they have concluded that it is impossible to achieve the fair and efficient administration of a partnership audit. Yet, this is precisely the result of the Tax Court's ruling.
[15] It would be clearly anomalous to construe the regulation as providing for a possibility that the respondent send no notice at all, since the respondent determined a condition exists that interferes with an effective and efficient TEFRA audit. This construction of the statute is impermissible, because it renders the mandatory instruction (if Secretary says it interferes, then it does) superfluous and inoperative. Duke v. University of Texas, 663 F.2d 522, 526 (5th Cir. 1981). Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.
2. THE REGULATION MANDATES NOTICE TO THE TMP BY REASON OF
DUE PROCESS REQUIREMENTS
[16] Interpreting the Commissioner's regulation as establishing a nondiscretionary requirement to send notice is also consistent with the fundamentals of due process. Due process requires that one's representative not have his fiduciary duties compromised by his own personal interests. Phillips Petroleum v. Shutts, 472 U.S. 797 (1985); Transpac Drilling Venture 1982-12 v. Commissioner, 147 F.3d 221, 227-228 (2nd Cir. 1988). The Commissioner has a duty to ensure that there is efficient administration of the tax law in a TEFRA proceeding. The Commissioner cannot simply ignore a TMP's severe conflict of interest created and perpetuated by his own criminal investigations of the TMP.
[17] The Second Circuit recently held that the TMP's consent to extend the statute of limitations was void by reason of his conflict of interest, notwithstanding the operation of the special enforcement regulation at 301.6131(c)-5T. Transpac Drilling Venture 1982-12 v. Commissioner, 147 F.3d 221 (2nd Cir. 1998). The Transpac case arose from the Commissioner's TEFRA audit of numerous limited partnerships promoted by persons who also served as TMPs. Like the present case, the Commissioner was investigating the TMPs for criminal tax fraud while the civil audits of the partnerships were ongoing. When the statutes of limitations were about to expire on the civil audit, the Commissioner in Transpac sought extensions from individual partners. When the individuals refused, he obtained agreements from the TMPs to extend the statutes. The partners later argued that the FPAAs were untimely because the statute extensions executed by the TMPs were not valid.
[18] The Court in Transpac Drilling stated:
We cannot lightly impute to Congress the intent to vest sole
discretion to determine the existence of a conflict of interest
in the very party that, by its actions (albeit justified),
causes the conflict. And there is nothing in the language or
history of TEFRA that would lead us to do so.
147 F.3d at 226.
[19] The Commissioner asserted in Transpac that the TMP's responsibilities continue, in spite of the conflict of interest, until such time as the Commissioner decides to terminate his role by sending a notice to the partners of such termination under Temp. Treas. Reg. section 6231(c)-5T. Transpac Drilling, 147 F.3d at 225. However, as the Transpac court noted, it is anomalous and contrary to any law of due process for the Commissioner to place himself in the single and exclusive capacity to decide whether the investor partner is receiving due process through his fiduciary, particularly when the Commissioner stands in the position to gain from the TMP's conflict of interest. Transpac Drilling, 147 F.3d at 227-228, citing, Sriram v. Preferred Income Fund III Ltd. Partnership, 22 F.3d 498 (2d Cir. 1994).
[20] Accordingly, the statutory and regulatory authority do not permit the I.R.S. to place itself in such an untenable situation. The I.R.S. has no discretion to send the notice converting the TMP's partnership items.
3. NOTICE OF THE CONVERSION MUST BE ISSUED WITHIN A
REASONABLE PERIOD OF TIME
[21] This Court must ascertain a reasonable policy to effect the notice and must determine whether the I.R.S.' view in that regard is a reasonable one. Chevron U.S.A., Inc. vs. Natural Resources Defense Council, Inc. 467 U.S. 837, 845 (1984). The I.R.S. argues that the effective date of conversion would be when, and if, notice is given to the TMP that his partnership items were converted. This construction, as indicated, emasculates the mandatory feature of the statute. Thus, deference to the agency interpretation cannot be given since it is plainly erroneous and inconsistent with the statute (and their own regulation). Udall v. Tallman, 380 U.S. 1 (1965).
[22] The more harmonious interpretation of the notice provisions of the regulation is that the I.R.S. has the nondiscretionary duty to notify the TMP that his partnership items have been converted within a reasonable period of time. What is a reasonable period of time? The I.R.S. suggests an automatic conversion upon the inception of a criminal investigation is unworkable and unreasonable. Amici do not agree, but that is not what Amici suggest nevertheless. Amici argue that the triggering event for sending notice can be upon the inception of the criminal investigation as argued by Appellants, or at the latest, from the time the I.R.S. notifies the partner he is under criminal investigation. 4 Amici suggest that respondent has 30 days from the triggering event to send notice converting the partner's partnership items.
[23] There is instruction from related statutes in TEFRA to ascertain a reasonable period of time for the notice converting partnership items. For instance, 26 U.S.C. section 6231(a)(7) presents an analogous situation where there is no effective TMP. There the I.R.S. has the power to appoint a TMP if necessary to ensure fair administration of case and notice of such appointment must be made within 30 days. A reasonable time requirement such as 30 days is implicit in order to give meaning to the statute and regulation read as a whole. Pearce v. Director, Office of Worker's Compensation Programs, et al., 647 F.2d 716 (7th Cir. 1981).
C. RESPONDENT'S VIOLATION OF TREAS. REG. SECTION 6231(c)-5T RENDERS AGREEMENTS BY JAY HOYT A LEGAL NULLITY.
[24] Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. Morton v. Ruiz, 415 U.S. 199, 235. (1974). The I.R.S.' failure to provide notice results in the agreement between the I.R.S. and the disabled TMP being a legal nullity. Anderson v. U.S., 72 AFTR 2d 5249 (N.D. Cal 1993) (action taken by a TMP whose partnership items were converted due to his personal bankruptcy is a legal nullity. [sic] Had Jay Hoyt's partnership items been converted as required, he would not have had the authority to enter into agreements on behalf of the partnerships. The respondent's violation of his regulation cannot serve to validate the actions of the TMP.
[25] In that regard, respondent is essentially estopped from binding the partners to Jay Hoyt's agreement, because the respondent knew Jay Hoyt was under criminal investigation and knew that their failure to send notice converting Jay Hoyt's partnership items would result in unwitting partners detrimental reliance on the misleading silence of the I.R.S.. Fredericks v. Commissioner, 126 F.3d 433 (3rd Cir. 1997). The I.R.S. knew facts, unknown to the partners, i.e., that their TMP was under criminal investigation. The I.R.S. intended that the partners rely on conduct of the I.R.S. (their silence) to confirm that their TMP had the legal capacity to execute agreements which were in their best interests. The partners relied to their detriment on the conduct. Accordingly, the respondent is estopped from gaining the benefit of agreements that could not have been gained but for respondent's violation of their own regulation. Time Oil Co. v. Commissioner, 258 F.2d 237 (9th Cir. 1958) (I.R.S. estopped from recouping tax advantages obtained by employer where default was in part triggered by Commissioner).
V. CONCLUSION
[26] When a TMP is under criminal investigation for violation of internal revenue laws, the statute and regulation require the I.R.S. to notify the TMP, within a reasonable period of time, that his partnership items have become nonpartnership items. The I.R.S. has no discretion to notify the TMP. The I.R.S.' failure to issue such notice renders any agreements executed by said TMP, after the reasonable time period for notice, a legal nullity and the I.R.S. is otherwise estopped from binding partners to such agreements.
Dated: October 30, 2000
Respectfully submitted,
Wendy S. Pearson, Esq.
Attorney for Amici
CERTIFICATE OF COMPLIANCE PURSUANT TO
FED. R. AP. [sic] 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR CASE NUMBER 00-70850
I certify that:
_____1. Pursuant to Fed. R. App. P. .32(a)(7)(C) [sic] and
Circuit Rule 32-1, the attached Amicus Curiae Brief is
_____(a) Proportionately spaced, has a type face of 14
points or more and contains less than 14,000 words.
_____(b) Mono-spaced, has 10.5 or fewer characters per inch
and contains__________ words or________ lines of text.
_____2. The attached brief is not subject to the type-volume
limitations of Fed. R. App. P. .32(a)(7)(C) [sic] because
_____(a) This brief complies with Fed R. App. P. .32(a)(1)-(7)
[sic] and is a principal brief of no more than 30 pages or a
reply brief of no more than 15 pages;
____ (b) This brief complies with a page or size-volume
limitation established by separate court order dated _____and is
_____Proportionately spaced, has a type face of 14 points or
more and contains _____words,
or is
_____Mono-spaced, has 10.5 or fewer characters per inch
and contains _____pages or _____words or _____lines of text.
_____3. Briefs in Capital Cases
_____4. Amicus Briefs
_____Pursuant to Fed. R. App. P. .29(d) and 9th Cir. R. 32-1,
the attached Amicus Brief is proportionally spaced, has a
typeface of 14 points or more and contains 7000 words or less,
or is
_____Mono-spaced, has 10.5 or fewer characters per inch and
contains not more than either 7000 words or 650 lines of text.
or is
__X__Not subject to the type-volume limitations because it is an
amicus brief of not more than 15 pages and complies with Fed.
R. App. P. 32(a)(1)(5).
DATED: October 30, 2000.
Wendy S. Pearson, Attorney
CERTIFICATE OF SERVICE
[27] This is to certify that service of this motion has been made on counsel for the appellee and counsel for the appellant by mailing two (2) copies thereof on 31 October, 2000 in postage paid wrappers addressed as follows:
JOHN A. DUDECK, Jr. (As Lead Counsel)
Attorney
Tax Division/Appellate Section
Department of Justice
PO Box 502
Washington, DC 20044
and by facsimile transmission on October 30, 2000 to (202) 514-8456.
Curtis W. Berner, Esq.
Buell & Bemer
700 Larkspur Landing Circle, Suite 175
Larkspur, CA 94939
October 30, 2000
Wendy S. Pearson
APPENDIX A
Amici Curiae
_____________________________________________________________________
Taxpayer
Partnerships Last Name Taxpayer
_____________________________________________________________________
DGE 1985-1 Abelein Daniel
DGE 1986-1(A)(87-93) Abelein Daniel
FF #4 (92-96) Abelein Daniel
SGE 1985-1(86) Abelein Daniel
TBS 1985-1(85) Abelein Daniel
DF #4 (1995, 1996) Allen William E.
DGE 1990-4 Allen William E.
DGE 1986-3 (93-96) Andres Lars
DSBS 1987-B (89-90) Andres Lars
SGE 1986-B (87-93) Andres Lars
SGE 1984-1 (84-87, 89-91) Andrew Henry
SGE 1990-1 (93-94) Andrew Henry
TBS 1987-1 (87, 89) Andrew Henry
TBS JV 87, (89-91) Andrew Henry
DGE 1984-1 Andrews Robert
DGE 1984-2 (84-86, 88-91, 93-96) Andrews Robert
DGE 1985-4 (87, 91, 93) Andrews Robert
H&S Truck (1989) Andrews Robert
HS TRUCK (91, 92) & HS Ranches (89) Barnes Roy
SGE 1983-1 Barnes Roy
SGE 1984-4 (84-97) Barnes Roy
TBS (1988-1992) Barnes Roy
TBS 1987-2 Barnes Roy
TBS 1989-1 (1989), TBS 1989-3 (90-93)Barnes Roy
HS TRUCK (1989) Bartak Ernest
SGE 1983-1 (1983-1996) Bartak Ernest
TBS #1 (1987) Bartak Ernest
TBS (1987-1990) Bartak Ernest
TBS 1987-2 (1987-1991) Bartak Ernest
DGE 1984-2 (1984-1996) Beardsley Clarence
HS TRUCK (1989-1991) Beardsley Clarence
FF #2 (1995-1997) Beltran Martin
HS TRUCK Beltran Martin
TBS 1987-C (1987-1995) Beltran Martin
DGE 1986-2 (92) Bergamyer Jeffry
DSBS 1987-3 Bergamyer Jeffry
DSBS 1987-C Bergamyer Jeffry
Ovine Genetic 1990 (1993-1994) Bergamyer Jeffry
RCR #7 (1995) Bergamyer Jeffry
RCR 1985-2 (88-91) Bergamyer Jeffry
TBS (88-91) Bergamyer Jeffry
SGE 1984-4 (84-86) Bergevin Robert
DGE 1985-1 (82-89, 91, 93-94) Berry Donald
DGE 1986-3 (94-96) Berry Donald
DGE 1986-C (87-91, 93) Berry Donald
HS Truck (89-90) Berry Donald
TBS (88-90) Berry Donald
TBS 1987-1 (92, 93) Berry Donald
SGE-1984-5 (84-97) Blackburn Gary
SGE 1990-2 (91-93) Blackburn Gary
SGE 1990-1-(1997 Botkins Eugene
DSBS 1987-2 (B)(87-96) Bradford Sandra
DGE 1984-1 (86-93) Britton David
RCR #2 (93-97) Britton David
TBS 1984-1 (84, 85) Britton David
DF #1(1995, 1996) Brock John
DGE 1985-B Brock John
DGE 1986-C (87-93) Buehner Kenneth
HS Truck (89) Buehner Kenneth
SGE 1983-1 (86, 88, 90-97) Buehner Kenneth
TBS (87-92) Buehner Kenneth
HS TRUCK (1990, 1993) Bulger Bruce
SGE 1983-3 (1994-1996) Bulger Bruce
SGE 1985-2 (1985, 1986, 1990) Bulger Bruce
SGE 1990-3 (1993, 1994) Bulger Bruce
TBS (1990) Bulger Bruce
DGE 1983-2 Capehart Robert
HS TRUCK (1989) Capehart Robert
SGE 1983-2 (84-93, 95-97) Capehart Robert
TBS (90-91) Capehart Robert
TBS 1989-2 (89-93) Capehart Roger
DGE 1984-4 (87) Carter Roger
DSBS 1990-5 (93) Carter Roger
HS TRUCK (89, 91-92) Carter Roger
SGE 1984-4 (84-86, 88-96) Carter Roger
TBS (88-92) Carter Roger
TBS 1989-3 (89-92) Carter Roger
OGT 1990 Casselman Dale
RCR #4 Casselman Dale
SGE 1983-2 Casselman Dale
SGE 1984-5 (85-96) Catlow Roger
DGE 1985-5 (87-97) Chisholm Boyd
HS Truck (87-92) Chisholm Boyd
TBS Trucking (89-92) Chisholm Boyd
SGE 1985-4 (85-93) Clayton Donald
SGE 1985-5 (94-96) Clayton Donald
TBS (87-93) Clayton Donald
TBS 1987-2 (87-93) Clayton Donald
TBS 1989-1 (89-90, 93) Clayton Donald
DGE 1982-1985 Colan Richard
DGE 1985-4, 1986-97) Colan Richard
HS TRUCK (1989) Colan Richard
TBS 1982-1985 Colan Richard
SGE 1984-1 (1991-1996) Costello Tom
SGE 1984-1 (84-95) Cross Gary L.
TBS (88-90) Cross Gary L.
TBS 1989-1 (89-92) Cross Gary L.
DSBS 1987-4 (93) Dale Michael
DSBS 1987-D (89-92) Dale Michael
DSBS 1990-2 (94, 1996-97) Dale Michael
HS TRUCK Dale Michael
RCR #3 (93) Dale Michael
T&C Breeding (90-91) Dale Michael
HS TRUCK (90, 93) Doyel Christopher
SGE 1984-2 (84-96) Doyel Christopher
SGE 1984-4 Doyel Christopher
TBS 1987-1 (90-93) Doyel Christopher
DGE 1986-2 Durkin Mila
DGE 1986-3 (91-93) Durkin Mila
WR #2 (93-97) Durkin Mila
DGE 1984-2 (88-97) Ellison Don
DGE 1986-4 (93) Ellison Don
TBS (89-90) Ellison Don
TBS 1989-3 (90-93) Ellison Don
DGE 1985-5 (85-88, 95-97) Ertz Donald
DGE 1986-C Ertz Donald
DSBS 1987-4(D) (88, 91-93) Foy Helen
SGE 1984-3 (84-95) Foy Helen
TBS (88-90) Foy Helen
FF #2 (94-97) Franklin Marvin
FF #5 Franklin Marvin
TBS (88-92) Franklin Marvin
TBS 1987-C (88-93) Franklin Marvin
TGE 1983-3 (87-89, 91-92) Freeman Gordon
TBS (87-89) Freeman Gordon
TBS 1987-2 (87-90, 94-97) Freeman Gordon
TBS 1989-2 (89, 91-93) Freeman Gordon
TBS 1989-1 Fruge Jesse
DSBS 1987-4 (D) Gallagher Michael
HS TRUCK Gallagher Michael
TGE 1990-1 Gallagher Michael
DGE 1985-2 (86), (88, 94-96) George Thomas
Labor Pool (84-86), (88-94) George Thomas
PCR #3 (86), (88-95) George Thomas
PCR #4 (84-86), (88-91) George Thomas
SGE 1985-2 (95) George Thomas
SGE 1984-4 (84-96) Gott Alan
DSBS 1987-1 (A) (90-93) Hansen Gary
DSBS 1987-3 (C) (95-97) Hansen Gary
DSBS 1987-C (87, 88) Hansen Gary
HS TRUCK (89) Hansen Gary
SGE 1986-B (87-88) Hansen Gary
TBS (89) Hansen Gary
TBS 1989-1 (89) DSBS 1987-A (90-93) Hansen Gary
DGE 1984-2 (89-91) Harper Mike
SGE 1984-4 (84-91, 95-97) Harper Mike
SGE 1990-3 (92-93) Harper Mike
TBS 1989-2 (91) Harper Mike
TBS 1991-3 Hay Gilbert III
WR #7 (1994) Hay Gilbert III
DGE 1984-1 (84-88, 91-91) Hendrickson Dale W.
DGE 1990-1 (94-96) Hendrickson Dale W.
TBS (89-90) Hendrickson Dale W.
TBS 1987-1 (87-93) Hendrickson Dale W.
DSBS 1987-1 (93)+A266 Hernandez Ray
DGE 1985-3 (85-89, 91-93) Holzendorf William
HS-TRUCK (89) Holzendorf William
TBS 1987-1 (87-96) Holzendorf William
DGE 1984-3 Hubbart Frank
HS TRUCK (1989) Hubbart Frank
SGE 1984-3 (84-93, 95-96) Hubbart Frank
DSBS 1990-5 Hughes Steve
RCR #1 Hughes Steve
RCR #5 Hughes Steve
DGE 1985-2 (1985-1996) Hullum Sylvester
DGE 1985-3 (1982-1991) Inserra Paul
(1993, 1995-1996) Isham Edward P
FF #2 (1994-1995) Ittner John
FF #4 Ittner John
HS TRUCk (1989) Ittner John
TBS 1967-C (1987-1993) Ittner John
TBS JV (1988-1992) Ittner John
DGE 1983-2 (1984-1987 & 1989-1996) Jenkins Robert
DGE 1986-2 Jenkins Robert
SGE 1984-2 (1988-1994) Jenkins Robert
SGE 1984-5 (1984-1994) Jenkins Robert
TBS JV (1987-1989) Jenkins Robert
DGE 1984-4 (1984-1986-1988) Johnson Bobbie
DSBS 1990-5 (1993) Johnson Bobbie
HS TRUCK (1989) Johnson Bobbie
SGE 1984-4 (1988-1993) Johnson Bobbie
TBS 1987-1 (1991-1993) Johnson Bobbie
TBS JV (1987-1990) Johnson Bobbie
SGE 1982-2 Kaczocha Timothy
DGE 1984-3 (1984-1987 & 1990-1996) Kassakatis Leroy
DSBS 1987-A (1990-1992) Kassakatis Leroy
HS TRUCK Kassakatis Leroy
TBS 1983-2 Kassakatis Leroy
TBS JV (1990-1992) Kassakatis Leroy
DGE 1985-5 (1985-1996) Keizer John
DGE 1990-2 (1994) Keller Michael
DGE 1990-3 (1996) Keller Michael
DGE 1985-4 (1994-1996) Kempt Neal
SGE 1985-1 (1485-1992) Kempt Neal
TBS 1987-1 (1987 & 1992-1994) Kempt Neal
TBS JV (1987-1990) Kempt Neal
HS TRUCK (1989, 1991) Klopschinski Robert
TBS 1987-2 (1988-1993 & 1995-1996) Klopschinski Robert
TBS JV (1989-1990) Klopschinski Robert
DSBS 1987-5 (E), Lawrence Richard
DSBS 1987-E (1987-1988 & 1991-1992) Lawrence Richard
FF #5 Lawrence Richard
HS TRUCK (1989) Lawrence Richard
TBS 1987-1 (1995-1997) Lawrence Richard
TBS 1987-A (1987-1993) Lawrence Richard
DF #5 (1990-1996) Lindley James
SGE 1985-1 (1995) Lindley Travis
TBS 1989-1 (1991-1995) Lindley William
WR #3 (1990, 1991) Lindley William
SGE 1985-2 (1985-1990 & 1993-1996) Lowe Marcus
DGE 1985-3 (1985-1986) Lynch Dan
DGE 1966-A (1987-1993) Lynch Dan
WR #1 Lynch Dan
WR #6 1993-(94, 95, 96, 97) Lynch Dan
SGE 1985-3 (1985-1996) Mains Robert
DGE 1984-1 (1984-1993, 1995-1997) Malinowski Alfred
DSBS 1990-1 (1993) Malinowski Alfred
HS TRUCK (1989) Malinowski Alfred
TBS 1989-1 (1989-1992) Malinowski Alfred
DGE 1986-2 Marco Edgar
DSBS 1987-6(F) (1995-1996) Marco Edgar
PCR #4 (1994) Marco Edgar
TBS 1989-1 (1991) Marco Edgar
TBS 1990-1 (1992-1994) Marco Edgar
DGE 1985-4 (1985-1995) Marlatt Walter
DGE 1986-4 (1996-1997) Marlaft Walter
DGE 1985-1 (1985-1996) Matherne Glenn
HS TRUCK (1989) Matherne Glenn
TBS 1987-1 (1987-1989, 1990-1993) Matherne Glenn
DSBS 1987-3(C) McDonough Gary
DSBS 1987-C (1988, 1990) McDonough Gary
SGE 1990-3 (1994, 1995, 1997) McDonough Gary
SGE 1990-4 (1993) McDonough Gary
TBS (1989-1990) McDonough Gary
DGE 1984-1 (1994-1995) McGifford Edwin
DGE 1990-1 (1995-1996) McGifford Edwin
DSBS 1990-1 McGifford Edwin
SGE 1984-1 (1984, 1986,1993) McGifford Edwin
SGE 1984-A (1987-1992) McGifford Edwin
SGE 1986-2 (1995) McIntyre Thomas
DGE 1986-3 (1995) McIntyre Thomas
DGE 1986-4 (1995) McIntyre Thomas
SGE 1990-1 (1995) McIntyre Thomas
DGE 1985-A (1987) McLaughlin Robert R.
DSBS 1987-E (1987-1988 & 1991) McLaughlin Robert R.
TBS 1989-2 (1989) McLaughlin Robert R.
TBS JV (1988-1990) McLaughlin Robert R.
WR #6 (1994-1996) McLaughlin Robert R.
DSBS 1990-1 (1988-93) McNeely Gerald
FIF #5 (1993-1996) McNeely Gerald
DGE 1985-3 (1985-1996) Meier Roger
HS TRUCK 1989 Meier Roger
SGE 1985-1 (1985-1996) Mekulsia John
TBS 1987-2 (1987, 1988, 1990, 1993) Mekulsia John
TBS JV (1987-1990) Mekulsia John
DSBS 1987-3 (C) 89-93, 95 Moffett James
DSBS 1987-4 (D) 96 Moffett James
PCR #3 Moffett James
DF #5 (1993-1997) Moore Mike
SGE 1985-B (1990-1993) Moore Mike
DGE 1984-2 (1984, 1987-1992) Nash Helen K.
DGE 1985-4 (1991-1993) Nash Helen K.
HS TRUCK (1989) Nash Helen K.
HS TRUCK (1989-1990) Nash Dennis
SGE 1984-1 (1987-1996) Nash Dennis
SGE 1984-5 (1985) Nash Helen K.
TBS 1989-1 (1989-1993) Nash Dennis
TBS JV (1989-1990) Nash Dennis
DGE 1983-2 (86-96) Nelson Curt
SGE 1982-1 (1982-1985 & 1987-1990) Nelson Curt
DGE 1986-3 (1991-1993) Parker Gary
SGE 1984-2 (1984-1996) Parker Gary
TBS 1987-C (1989-1992) Parker Gary
TBS JV (1989-1991) Parker Gary
DGE 1985-3 (1985-1992) Pemberton Dale
SGE 1982-3 (1994-1997) Pemberton Dale
SGE 1990-2 (1993-1997) Pernberton Dale
TBS 1989-2 (1991-1992) Pernberton Dale
TBS JV (1987-1992) Pemberton Dale
DGE 1984-2 (1984-1986 & 1991,
1993-1996) Phillips Richard
DGE 1984-A (1987-1992) Phillips Richard
HS TRUCK (1989) Phillips Richard
TBS 1989-1 (1989-1991 & 1993) Phillips Richard
HS TRUCK (1989) Ponder Mike
SGE 1985-3 (1985-1997) Ponder Mike
DF #5 (1993-1997) Potts Larry
DGE 1986-3 (1986) Potts Larry
HS TRUCK (1989, 1991) Potts Larry
TBS 1987-B (1987-1993) Potts Larry
DSBS 1987-2(B) (1987-1994 Quinones Daniel
DSBS 1987-C (1989) Quinones Daniel
DSBS 1990-2 (1994-1996) Quinones Daniel
SGE 1985-1 (85, 86, 88 89,
92, 93, 95, 96) Ray A. Don
SGE 1985-A (1987-1989, 1992-1993) Ray A. Don
TBS JV (1988-1989) Ray A. Don
SGE 1990-2 (1992-1993) Rocha Mike
WR #1 (1993-1997) Rocha Mike
SGE 1983-1 (1984-1989, 1995) Rosekrans Norman
SGE 1990-1 (95-96) Rosekrans Norman
TBS 1989-1 (1989 89-93) Rosekrans Norman
TBS JV (1989 89-90) Rosekrans Norman
DGE 1985-4 (1986-1991) Schneider Jay
TBS 1987-2 (1987-1997) Schneider Jay
TBS JV (1987-1991) Schneider Jay
DGE 1986-1(A) (1987-1994) Selzer Michael
DSBS 1987-6 (F) (1987-1992) Selzer Michael
WR #3 (1993-1996) Selzer Michael
OGT 1990 (1995-1996) Shepard Leon
RCR #4 (1995, 1996) Shepard Leon
SGE 1984-5 Shepard Leon
DGE 1986-1 (1995-1997) Sherrets Richard
DGE 1986-2 (1991-1994) Sherrets Richard
SGE 1985-4 (1986) Sherrets Richard
SGE 1985-C (1987-1993) Sherrets Richard
DSBS 1990-2 (1995-1997) Shiplet Ronnie
FF #3 (1993-1995) Shiplet Ronnie
FF #6 Shiplet Ronnie
HS TRUCK (1989) Shiplet Ronnie
SGE 1985-4 (1985-1986) Shiplet Ronnie
SGE 1985-2 (1985-1991 & 1996-1996) Siddon Jane
TBS 1987-2 (1987-1991) Siddon Jane
TBS JV (1988-1990) Siddon Jane
DSBS 1987-2 (B) (1987-1997) Singh Gurbaksh
PCR #2 Singh Gurbaksh
TBS 1987-C (1987-1993) Singh Gurbaksh
TBS 1989-1 (1989-1993) Singh Gurbaksh
TBS JV (1988-1990) Singh Gurbaksh
DSBS 1987-5 (E) Smith Leland
SGE 1984-4 (1996) Smith Leland
HS TRUCK (1989) Sotro, Jr. Joe
SGE 1985-5 (1985-1996) Sotro, Jr. Joe
TBS (1988-1990) Sotro, Jr. Joe
HS TRUCK (1989) Sotro, Sr. Joe
RCR #6 Sotro, Sr. Joe
TBS 1987-1 (1987, 1990-1993) Sotro, Sr. Joe
WR #1 Sotro, Sr. Joe
WR #6 (1993-1996) Sotro, Sr. Joe
HS TRUCK (1989) Steele Richard
SGE 1985-2 (1985-1986, 1988-1997) Steele Richard
SGE 1986-C (1987-1993) Steele Richard
TBS 1989-1 (1989-1993 Steele Richard
DSBS 1987-1 (A) (1995, 1996) Steen Will J., Jr.
FF #1 (1991-1994) Stockwell Howard
T&C Breeding (1994-1996) Stockwell Howard
DGE 1983-2 (1983-1996) Stubberund Walter
TBS #1 (1985-1989) Stubberud Walter
TBS 1987-2 (1987-1992) Stubberud Walter
TBS 1989-3 (1990-1994) Stubberud Walter
DGE 1483-2 (1983-1997) Suits Silas
SGE 1983-3 (1991-1993) Suits Silas
DGE 1990-5 (1992, 1993) Teston Matthew
FF #3 (1993-1996) Teston Matthew
SGE 1983-1 (1991, 1992-1996) Thompson Larry
SGE 1985-1 (1986-1987,
1988-1991-1993) Thompson Larry
TBS 1989-1 (1989-1992) Thompson Larry
TBS JV (1989-1990, 1992) Thompson Larry
DF #5 (1990-1997) Toscano Rocco
DGE 1984-A (1992-1993) Toscano Rocco
DGE 1984-2 (1984-1986, 1991-1996) Tulp Robert
DGE 1985-4 (1987-1992) Tulp Robert
HS TRUCK, 1989 Tulp Robert
DGE 1983-3 (1983-1990, 1993-1997) Van Scoten Ed
DGE 1986-3 (1991-1993) Van Scoten Ed
DSBS 1987-3 (C) (1990-1997) Van Scoten Ron
PCR #3 Van Scoten Ron
DGE 1984-3 Vash Daniel
DGE 1985-3 (1985-1997) Vash Daniel
DGE 1983 (1986, 1991, 1993-1996) Walker Lloyd
HS TRUCK (1989-1990) Walker Lloyd
TBS 1987-A (1987-1993) Walker Lloyd
TBS JV (1987-1993) Walker Lloyd
HS TRUCK (1989) Warner Dale
SGE 1985-5 (1985-1989, 1993-1996) Warner Dale
TBS JV (1987-1989) Warner Dale
DGE 1984-3 (91, 93-95, 97)-) [sic] Wellington Charles
DGE 1986-3 Wellington Charles
SGE 1984-1 (1984, 86-91) Wellington Charles
TBS 1989-3 (91-93) Wellington Charles
HS TRUCK (1989) Wenborne Richard
SGE 1982-1 (1993-1996) Wenborne Richard
SGE 1984-1 (1984-1986) Wenborne Richard
SGE 1984-A (1987-1992) Wenborne Richard
SGE 1982-1 (1995-1996) Williams Mike
SGE 1986-C (1989-1993) Williams Mike
SGE 1990-1 (1993-1995) Williams Mike
DSBS 1987-4 (D)(1993) Wolford Gene
PCR #4 (1994, 1995) Wolford Gene
DF #5 (1993, 1994) Wunderlich John
DGE 1985-3 (1985-1986) Wunderlich John
DGE 1985-B (1987-1993) Wunderlich John
TBS 1987-1(1987-1988) Munderlich John
TBS 1989-2(1989-1993) Wunderlich John
DGE 1985-A (1987) Wyatt Dan
FF #1 (1993-1995) Wyatt Dan
FF #2 (1994-1996) Wyatt Dan
SGE 1986-A (1993) Wyatt Dan
_____________________________________________________________________
1 See Appendix A for a complete listing of Amici and their partnerships.
2 See, H.R. Conf. Rept. No. 97-760, at 599; The Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA"), Pub. L. No. 97-248, 96 Stat. 324.
3 The I.R.S. similarly determined that the individual bankruptcy of a TMP, and the determination of a TMP's taxable income by the indirect proof method would interfere with the audit of a partnership. Temp. Treas. Regs. sections 301.6231(c)-6T and 301.6231(c)-7T.
4 Respondent does not dispute Jay Hoyt was notified he was under criminal investigation. That fact alone sets the In Re Miller case apart from the instant case, because the court therein had no evidence that Jay Hoyt knew about the criminal investigation and it was concerned that no party would know when to terminate the TMP status. 174 B.R. 791, 796, 74 A.F.T.R. 2d (RIA) 7320 (9th Cir. BAP 1994).
END OF FOOTNOTES
- Case NameRICHARD K. PHILIPS AND MARILYN J. PHILLIPS, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
- CourtUnited States Court of Appeals for the Ninth Circuit
- DocketNo. 00-70850
- AuthorsPearson, Wendy S.
- Institutional AuthorsPearson, Merriam & Kovach, P.C.
- Cross-ReferencePhillips v. Commissioner, 114 T.C. 115 (2000)
- Code Sections
- Subject Area/Tax Topics
- Index Termspartnerships, tax matters partner
- Jurisdictions
- LanguageEnglish
- Tax Analysts Document NumberDoc 2000-30017 (31 original pages)
- Tax Analysts Electronic Citation2000 TNT 232-52