OPINION
It is the rare statute — even in the world of Federal taxation — that continues to spawn jurisdictional disputes nearly thirty years after its enactment. But, as many recent cases would attest, the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub.L. 97-248, 96 Stat. 648, is among that uncommon breed. Respondent has moved to dismiss this case for lack of jurisdiction under RCFC 12(b)(1), claiming that the partner pursuing this partnership-level action has failed to make an adequate deposit with the Treasury under section 6226(e)(1) of the Internal Revenue Code of 1986 (26 U.S.C.) (the Code). Following briefing and oral argument, and for the reasons that follow, the court DENIES respondent’s motion.
I.
A brief recitation of the facts provides necessary context.
On or about December 10, 1997, Prestop Holdings, LLC (Prestop) was formed as a partnership under Delaware laws. JL Investment Trust (the Trust), the grantor of which is John M. Larson (Mr. Larson), is one of two partners in the partnership.
On October 15, 1999, the Trust filed its 1998 income tax return. In its return, the Trust claimed a short term capital loss of $2,613,003 from the sale of its stock in Torpre, which was the difference between the sale price of the stock, $536,586, and the stated basis in the stock, $3,149,589. After accounting for a $460,478 short term gain, the Trust carried over $2,152,525 as a short term capital loss into 1999.
On December 27, 2004, the Internal Revenue Service (IRS) issued Prestop a Notice of Final Partnership Administrative Adjustment (the FPAA) for the partnership taxable year ending December 31,1997. The FPAA adjusted the total amount of distributions to partners from zero, as reported on Prestop’s original return for 1997, to $6,149,178, and thus increased the distribution to the Trust by $3,074,589. That adjustment had the effect of decreasing the Trust’s basis in Pres-top from $3,149,589 to $75,000. The IRS explained that when the Trust transferred its proceeds from the short sale to Prestop, it also transferred the obligation to close open short sales in U.S. Treasury notes equal to $3,074,589. It claimed that this assumption of liability by the partnership decreased the individual liabilities of the partners, including the Trust, which triggered a constructive distribution of cash that should have reduced the partners’ bases in Prestop by the amount Prestop assumed in liability.
Pursuant to section 6226(e)(1) of the Code, on May 25, 2005, Mr. Larson, as the grantor of the Trust, a “notice partner” of Prestop, deposited $100 with the Treasury in an effort to satisfy the requirements for challenging the adjustments made by the FPAA to the partnership’s 1997 tax return. On May 26, 2005, the Trust, acting through Mr. Larson, filed a petition
On December 4, 2009, respondent filed a motion to dismiss the petition for lack of subject matter jurisdiction under RCFC 12(b)(1), asserting that Mr. Larson had failed to make the jurisdictional deposit required by 26 U.S.C. § 6226(e)(1). Respondent argues that the appropriate jurisdictional deposit was the amount that Mr. Larson’s total income tax liability, spanning from 1997 until 2001, would increase when the partnership items of Prestop were treated consistent with the adjustments made by the FPAA. According to the IRS, the total adjustment would be $836,687, exclusive of penalties and interest. As the accompanying chart illustrates, this includes an increase in tax liability in 1998 of $374,708, in 1999 of zero, in 2000 of $334,267, and in 2001 of $126,712.
II.
Deciding a motion to dismiss “starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States,
A.
“Although they file information returns under section 701 of the Code, partnerships, as such, are not subject to federal income taxes,” but “[ijnstead, under section 702 of the Code, ... are conduit entities, such that items of partnership income, deductions, credits, and losses are allocated among the partners for inсlusion in their respective returns.” Clearmeadow Invs., LLC v. United States,
Judicial review of the FPAA is provided, inter alia, by section 6226 of the Code. Subsection (a) of that section provides that—
[w]ithin 90 days after the day on which a notice of a final partnership administrative adjustment is mailed to the tax matters partner, the tax matters partner may file a petition for a readjustment of the partnership items for suсh taxable year with — (1) the Tax Court, (2) the district court ... or (3) the Court of Federal Claims.
26 U.S.C. § 6226(a). On or before the date such a readjustment petition is filed, the partner filing the petition must deposit with the Treasury Department the amount “by which the tax liability of the partner would be increased if the treatment of partnership items on the partner’s return were made consistent with the treatment of partnership items on the partnership return, as adjusted by the [FPAA].” 26 U.S.C. § 6226(e)(1) (2000); see also Treas. Reg. § 301.6226(e)l(a)(l). Under section 6226(f) of the Code, this court has “jurisdiction to determine all partnership items of the partnership for the taxable year to which the notice of final partnership administrative adjustment relates, the proper allocation of such items among the partners, and the applicability of any penalty, addition to tax, or additional amount which relates to an adjustment to a partnership item.” 26 U.S.C. § 6226(f); see also Jade Trading, LLC ex rel. Ervin v. United States,
The parties disagree as to whether Mr. Larson has made the deposit required by section 6226(e)(1). Respondent contends that this paragraph requires the partner to make a deposit that accounts for all the gains and losses flowing from the parent partnership, irrespective of whether the losses were received in more than one year. It relies on two prior decisions of this court: Kislev Partners, L.P. ex rel. Bahar v. United States,
B.
In Kislev, Judge Williams held that, to meet the jurisdictional requirements under section 6226(e)(1), a partner must deposit an amount equal to the liability that would result for all affected years, and not just the year for which the FPAA was issued. Kislev involved a limited partnership and a real estate developer which claimed an ordinary loss of approximately $140 million — approximately $6 million of which the partnership listed on its 2002 return and $134 million of which it deferred.
The following year, in another case involving section 6226(e)(1), Judge Bruggink came to a similar conclusion on analogous facts in Russian Recovery. Adopting the reasoning in Kislev, the court in Russian Recovery stated—
we agree with Kislev and the defendant that the total tax liability depository requirement trumps the singular “return.” Kislev,84 Fed.Cl. at 388 . Moreover, a voluntary election to defer losses to subsequent years should not control the deposit amount. Allowing an entity to do so would permit it to assure itself of a deposit-free chance to litigate by allocating the loss entirely to other years.
Russian Recovery,
With all due respect to the distinguished jurists who penned these opinions, both Kislev and Russian Recovery are mistaken in requiring a partner to pay the total, multi-year tax liability associated with the adjustment made in a FPAA as a precondition to challenging that adjustment. As will be seen, that conclusion fails to give proper account to the statutory language of section 6226, the structure of the TEFRA provisions, and, to the extent relevant, the legislative history of TEFRA. The court will consider these points seriatim.
C.
As with any issue involving a question of statutory construction, “the starting point ... here must be the language and structure of the relevant statute[ ].” FleetBoston Fin. Corp. v. United States,
As authority for this statutory rewrite, Kislev and Russian Recovery both relied heavily upon the Dictionary Act, 1 U.S.C. § 1. That statute allows singular nouns to be read as plurals unless — and this proves an important caveat — “the context indicates otherwise.” In construing the latter proviso, the Supreme Court has stated that “context” means “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts.” Rowland v. Cal. Men’s Colony,
There is more, then, to applying the Dictionary Act than the in vacuo sprinkling, here and there in a statutory text, of the nineteenth letter of the English alphabet. Like other linguistic “variants,” such plurali-zations are “ereature[s] not of definitional possibilities but of statutory context.” Brown v. Gardner,
1.
The court turns first to the other subsections in section 6226. Thus, section 6226(a) indicates that within ninety days of receiving a FPAA as to a partnership taxable year, the TMP may file a petition for a readjustment of the partnership items “for such taxable year.” 26 U.S.C. § 6226(a). Likewise, section 6226(b) indicates that if the TMP does not file such a petition, certain partners may then file a petition for readjustment of the partnership items “for the taxable year involved.” 26 U.S.C. § 6226(b). Of course, it requires little creativity to pluralize these references, as well. But, that is not so easy to do in section 6226(f), which defines the scope of a FPAA judicial review. That subsection states that “[a] court with which a petition is filed in accordance with this section shall have jurisdiction to determine all
The notion, indeed, that the deposit requirement covers multiple tax years might make more sense if TEFRA anticipated that a single FPAA would address a given partnership item arising in multiple partnership taxable years. But, it does not. Instead, a number of TEFRA provisions seem to anticipate that multiple FPAAs will be issued for a given partnership item, with each corresponding to a different taxable year. That view, for example, is reflected in section 6223(c) of the Code, which indicates that the Secretary “shall use thе names, addresses, and profits interest shown on the partnership return” in determining which partners are entitled to receive a copy of the FPAA. That notice requirement, of course, would not work if a single FPAA was designed to address the liabilities of partners whose contact information and partnership interests changed from partnership return to partnership return. Another clue to Congress’ intentions may be found in section 6223(f) of the Code, which generally prevents the Secretary from mailing more than one FPAA “for a partnership taxable year with respect to partner.” Again, if a FPAA was expected to cover a particular adjustment over multiple partnership years, one would expect that Congress would have enacted a provision preventing the Secretary from issuing more than one FPAA covering that same adjustment. But, it did not. Given these provisions, it should come as little surprise that the Internal Revenue Manual likewise proceeds from the notion that FPAAs will be issued on year-by-year basis, instructing the IRS appeals officers responsible for preparing FPAAs to “[pjrepare a separate FPAA ... for each unagreed year.” I.R.M. 8.19.3.10.1 (2010).
This focus on individual partnership taxable years — and the syntax to match — continues through a host of other TEFRA provisions. It can be seen as a background principle in the provisions defining who can challenge an adjustment. Among the part
That said, the best indication why the deposit requirement of section 6226(e) should not be construed to sweep in multiple tax years comes from the other judicial review provision in TEFRA, section 6228 of the Code. This section comes into play where a partnership files its return and then a partner, prior to the time a FPAA is issued, seeks the readjustment of a partnership item.
*252 [a] partner may file a request for an administrative adjustment of partnership items for any partnership taxable year at any time which is—
(1) within 3 years after the later of—
(A) the date on which the partnership return for such year is filed, or
(B) the last day for filing the partnership return for such year (determined without regard to extensions), and
(2) before the mailing to the tax matters partner of a notice of final partnership administrative adjustment with respect to such taxable year.
26 U.S.C. § 6227(a). The quoted language makes clear that the request for administrative adjustment (RAA) is targeted on a specific partnership taxable year — the three-year limitations provision in section 6227(a)(1), indeed, would not work if the references to “return” and “year” therein were pluralized.
If a RAA is denied by the IRS, section 6228 authorizes the TMP to file a petition seeking the adjustment in the same fora listed in section 6226 the Tax Court, the district courts, or the Court of Federal Claims). And section 6228(a)(5) contains a provision describing the scope of judicial review that is very similar to that in section 6226(f).
In fact, construing section 6226(e) to sweep in all of a partnеr’s liabilities associated with a particular partnership item, over multiple taxable years, not only would disrupt the operation of the aforementioned provisions (and likely lead to unintended consequences), but raises a host of thorny questions for
2.
Kislev and Russian Recovery fail to account for problems like these, and instead premise their shared holding on the claim that “tax liability is typically calculated on a multi-year basis.” Kislev,
The Supreme Court long ago held to the contrary, most famously in its landmark decision in Burnet v. Sanford & Brooks Co.,
A taxpayer may be in receipt of net income in one year and not in another. The net result of the two years, if combined in a single taxable period, might still be a loss; but it has never been supposed that that fact would relieve him from a tax on the first, or that it affords any reason for postponing the assessment of the tax until the end of a lifetime, or for some other indefinite period, to ascertain more precisely whether the final outcome of the period, or of a given transaction, will be a gain or a loss.
Id. at 364-65,
It is thus far too late in the day for anyone to assert that Federal income tax liability is calculated on a multi-year basis.
Then, there is the legislative history of TEFRA. While the Supreme Court, in Rowland, made clear that such history does not provide “context” for applying the Dictionary Act, it is worth noting that the history here, such as it is, does not support pluralization of the terms at issue.
That said, this history is perhaps more elucidating in reflecting Congress’ overarching intent that the new partnership level proceedings be roughly patterned after the tax audit and refund procedures generally applicable to other taxpayers. See H.R. Rep. 97-760, at 604 (analogizing the RAA to a “claim for refund”); J. Comm. Print, at 39 (“A partnership level proceeding would go through the same process of examination, audit, appeal, settlement, notice of final determination, etc., that generally applies to a tax audit.”).
In terms of this refund analogy, the TEFRA deposit requirement plays a role similar to the “full payment” rule required by Flora v. United States,
Consistent with its arguments in this ease, respondent has, in the past, argued that the “full payment” rule requires a taxpayer, as a precursor to filing a refund suit, to pay not only the deficiency associated with a particular taxable year, but also related deficiencies for other years. And, it has lost. Thus, in Shipley v. United States,
D.
Can it be that this court has jurisdiction to consider a challenge to a FPAA that makes no adjustments to income in the partnership taxable year referenced? The answer, in a word, is — yes. The Tax Court, in fact, repeatedly has held that it has jurisdiction over a partnership adjustment even where the FPAA makes no immediate adjustment in income or deductions. See Wilmington Partners, L.P.,
III.
Granted, TEFRA is the sort of law that brings to mind the old Mark Twain line— “The more you explain it, the more I don’t understand it.”
Respondent’s motion to dismiss is hereby DENIED. ' On or before January 5, 2011, the parties shall file a joint status report indicating how this ease should proceed, with a proposed schеdule, as appropriate.
IT IS SO ORDERED.
Notes
. These facts are drawn primarily from the petition (complaint) and, for purposes of this motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly,
. During the years 1997 through 2001, the Trust was a grantor trust. As such, all of its income was taxable to Mr. Larson, the grantor of the Trust. See 26 U.S.C. §§ 671-78.
. The loss carryover/carryback rules in section 172 of the Code mitigate the requirement that taxable income be calculated and reported on an annual basis, with no allowance for accrued but unrealized losses. 26 U.S.C. § 172; see also 2 Mertens Law of Federal Income Taxation § 12:46(2010).
. To be sure, the initial pleading was captioned as a "complaint," and the Trust was denominated therein the “complainant.” However, section 6226(b) of the Code authorizes only the filing of a "readjustment petition.” In observance of this, the court will refer to the complaint as a "petition” and, correspondingly, to the Trust as the "petitioner" and to the United States as the "respondent.” Such is the court’s practice under the Vaccine Act, 42 U.S.C. §§ 300aa-l to - 34, which also authorizes the filing of a "petition,” 42 U.S.C. § 300aa-l 1(a)(1).
.The Trust filed the petition as a notice partner only even though it is alsо the Tax Matters Partner (TMP) for the partnership. The TMP is the partner designated to act as a liaison between the partnership and the IRS in administrative proceedings, and as a representative of the partnership in judicial proceedings. See 26 U.S.C. §§ 6224(c)(3)(A); 6231(a)(7). A "notice partner” is a partner who is entitled to notice under section 6223(a) of the Code. 26 U.S.C. § 6231(a)(8). When a partnership has less than 100 partners, every partner is a notice partner; if the partnership has 100 or more partners, a notice partner is generally one who owns at least
. Respondent attached to its motion the affidavit of an IRS revenue officer asserting that the 1997 adjustment would result in the following tax liabilities for Mr. Larson:
Short term capital Other capital Carryover losses Adjustment loss reported due to gains/losses & from sale of pursuant to Year sale of Torpre stock deductions reported Torpre stock FPAA
1997 — $ 1,537 — $ 0
1998_$2,613,003_$ 460,478_$2,152,525_$374,708
1999_$2,152,525_$ 935,488_$1,217,037_$ 0
2000$1,217,037$ 607,551$ 609,486$334,267 2001 $ 598,456 $1,163,053 $ 0 $126,712
. The Second Circuit, in Toy Mfrs. of Am., Inc. v. Consumer Prod. Safety Comm.,
. Numerous cases have echoed this rule in rejecting the application of the Dictionary Act. See Taylor v. Acxiom Corp.,
. Notably, the FPAA here gives no hint that a partner seeking to challenge its adjustments would be required to deposit an amount reflecting thе impact of the adjustments on multiple tax years. Instead, it states that "the partner filing the petition must deposit the amount that the partner’s tax liability would be increased if the treatment of the partnership item on the partner's return were made consistent with the treatment of partnership items under the FPAA.”
. Section 6226(b)(2) of the Code states that ”[i]f more than 1 action is brought [by a partner other than a TMP] with respect to any partnership for any partnership taxable year, the first such action brought in the Tax Court shall go forward." 26 U.S.C. § 6226(b)(2). Section 6226(b)(3) also provides that ”[i]f more than 1 action is brought [by a partner other than a TMP] with respect to any partnership for any taxable year, but no such action is brought in the Tax Court, the first such action brought shall go forward.” 26 U.S.C. § 6226(b)(3).
. While the IRS Manual does not have the force of law, see Anderson v. United States,
. Regarding these requirements, the Conference Committee report stated—
The profit interest of any partner shall be determined as of the close of the partnership taxable year_This determination is significant in determining whether a partner's interest is one percent or more (in partnerships with over 100 partners) and in determining whether a notice group qualifies under the 5-percent requirement.
H.R. Rep. 97-760, at 610.
. Section 6224(c) of the Code contains rules for settling TEFRA partnership proceedings. One of these, section 6224(c)(3), generally authorizes the TMP to enter into a settlement on behalf of, and binding upon, less-than-one-percent-profits partners in partnerships with over 100 partners who are not entitled to notice of the FPAA under section 6223. 26 U.S.C. § 6224(c)(3); see also Duffie, v. United States,
. Section 6225 of the Code provides various limitations on assessment and collectiоn. Section 6225(a) provides that no assessment of a deficiency attributable to any partnership item may be made against an individual partner before—
(1) the close of the 150th day after the day on which [the FPAA] was mailed to the [TMP]; and
(2) if a proceeding is begun in the Tax Court under section 6226 during such 150-day period, the decision of the court in such proceeding has become final.
26 U.S.C. § 6225(a). This provision is patterned after the provisions applicable to notices of deficiency in section 6213(a) of the Code. 26 U.S.C. § 6213(a). And like the latter provision, section 6225(a) does not envision that the issuance of a single FPAA authorizes the Secretary to assess deficiencies in multiple tax years.
Section 6225(c) further states that—
If no proceeding under section 6226 is begun with respect to any final partnership administrative adjustment during the 150-day period described in subsection (a), the deficiency assessed against any partner with respect to the partnership items to which such adjustment relates shall not exceed the amount determined in accordance with such adjustment.
26 U.S.C. § 6225(c). Regarding this provision, the legislative history of TEFRA states that if no Tax Cоurt petition is filed, "the Secretary may assess any deficiency of the depositing partner resulting from the FPAA and apply such deficiency against the deposited amount." H.R. Rep. 97-760, at 604 (1982). Again, it is hard to see how this provision would apply to multiple deficiencies.
. The relevant Treasury Regulations also suggest that the TEFRA provisions are applied on a year-by-year basis. See, e.g., Treas. Reg. §§ 301.6223(b) — 1 (b)(5) (indicating that partners may request copies of FPAAs be sent "for more than one partnership taxable year” only if the standing requirement is "satisfied for each year to which the request relates”); 301.6223(e)-2(b)-(c) (providing for various elections to be made).
. As this provision reflects, TEFRA partnership suits, like tax refund suits more generally, come in two varieties. In the first (governed by section 6226), the IRS audits a partnership return, the IRS issues a FPAA, a partner makes the requisite
. It should be noted that respondent’s interpretation of section 6226 creates several problems with the RAA provisions. Among other things, under section 6227(a)(2), аdoption of its view seemingly would prevent partners from filing a RAA as to any partnership taxable year if the IRS mailed a FPAA to the TMP for one partnership taxable year.
. Thus, this paragraph provides—
Except in the case described in subparagraph (B) of paragraph (3), a court with which a petition is filed in accordance with this subsection shall have jurisdiction to determine only those partnership items to which the part of the request under section 6227 not allowed by the Secretary relates and those items with respect to which the Secretary asserts adjustments as offsets to the adjustments requested by the tax matters partner.
26 U.S.C. § 6228(a)(5). Notably, TEFRA includes rules for converting items that are the subject of an action under section 6228 into nonpartnership items — and these rules speak, as well, only in terms of the "partnership taxable year" that is the subject of the RAA suit. 26 U.S.C. § 6231(b)(1)(B).
.The following example serves to illustrate the mischief that could be wrought by this incongru-ency. Suppose that the partners of a partnership anticipate that the IRS will challenge their treatment of a particular transaction that occurs in a particular partnership taxable year — а transaction that will have tax impacts for a number of succeeding years. Suppose further that the partners intend to challenge the IRS in court. Under TEFRA, thej' have two choices. They can report the transaction in the first partnership taxable year in the fashion that they believe represents its proper tax treatment, wait for the IRS to audit the transaction and issue a FPAA, and then, in response, file a petition for readjustment under section 6226. Or they can report the transaction in the first partnership taxable year in the fashion that they believe represents the IRS’ view of the world, immediately file a RAA, and, when it is denied, file suit under section 6228. If Kislev and Russian Recovery are right, the partners in the first instance are required, as a precondition to filing suit under section 6226, to pay the tax liability associated with all the taxable years in which the item has impact, while those in the second instance are permitted to proceed under section 6228 without having to pay the aggregated liability. Logic suggests that Congress could not have intended to place such dramatically different demands on a partner’s ability to invoke the judicial review provisions of sections 6226 and 6228.
. It is notable in this regard that respondent's claim as to the proper amount of the deposit is founded not upon the FPAA, nor some other formal IRS notice, but rather upon an affidavit filed by an IRS revenue officer — a document to which no presumption of correctness attaches. Cf. Zuhone v. Comm'r of Internal Revenue,
. Compare 26 U.S.C. § 6226(a) — (b) (allowing a petition for readjustment to be filed within 90 to 150 days after the mailing of the FPAA) with 26 U.S.C. § 172(b)(l)(A)(ii) (allowing a "net operating loss carryover to each of the 20 taxаble years following the taxable year of the loss”).
. In its opening brief, respondent gambols around these issues, stating that "[f]or taxable years for which returns are due after the complaint, there is no return upon which to calculate the effect of the FPAA adjustments as of the date of the complaint, so § 6226(e)(1) does not apply to those years.” Of course, under this view, the longer it takes the IRS to audit the partnership and issue the FPAA, the more partners are required to deposit to challenge the IRS’ adjustments — a total non sequitur.
. See, e.g., Hillsboro Nat’l Bank v. Comm'r of Internal Revenue,
. Over time, this annual concept has been explicitly incorporated into a number of Code provisions, principal among them, section 441 of the Code, which provides that ”[t]axable income shall be computed on the basis of the taxpayer’s taxable year.” 26 U.S.C. § 441. The impact of this principle also provides the background for several provisions of the Code that are designed to ameliorate its sometimes harsh impacts. See 26 U.S.C. §§ 1311-14; 1341; see also Schortmann v. United States,
. It is conceivable that, in stating that tax liability is typically calculated on a multi-year basis, Kislev meant to refer not to the procedures established by the Code, but rather to the IRS' practice of examining more than one taxable year when it conducts certain types of audits. It hardly can be, however, that the pluralization of a provision enacted by Congress (particularly, one authorizing judicial review) rises or falls based upon what the IRS’ current audit practices are, let alone what they were in 1982, when TEFRA passed.
. Contrary to the analysis in Kislev,
. While this legislative history cannot be considered in determining the "context” surrounding section 6226(e)(1), for purposes of applying the Dictionary Act, it seemingly still holds some value in confirming Congress' intent in passing the statute. See Wanless v. Shinseki,
. As to the deposit requirement, the Conference Committee Report thus states-—
As a condition to filing a petition in either the appropriate district court or the Claims Court, the partner filing the petition (including each member of a 5-percent group which files a petition) must deposit with the Secretary the amount by which such partner's tax liability would be increased if treatment of partnership items on the partner’s return were made consistent with the partnership’s return as adjusted by the FPAA.
H.R. Rep. 97-760 at 603; see also H.R. 6300; A Bill to Improve Compliance with the Internal Revenue Laws, 97th Cong. 17-19, 39, 82-83 (1982) (statements of Hon. Egger, Comm'r, IRS, and Hon. Chapoton, Ass’t Sec., U.S. Dept, of Treasury); Staff of J. Comm, on Taxation, 97th Cong., Summary of the Revenue Provisions of H.R. 4961 (The Tax Equity & Fiscal Responsibility Act of 1982) 59-61 (Comm. Print 1982) ("A partner filing in any forum other than the Tax Court must first pay the deficiency resulting from adjustments to his return to reflect the FPAA.”); Staff of J. Comm, on Taxation, 97th Cong., Comparative Description of H.R. 6300 (The Tax Compliance Act of 1982) & H.R. 5829 (The Taxpayer Compliance Improvement Act of 1982) 38-41 (Comm. Print 1982) (hereinafter J. Comm. Print); 128 Cong. Rec. 21618-19 (daily ed. Aug. 17, 1982) (Technical Explanation of H.R. Rep. 97-760); 128 Cong. Rec. H2295 (daily ed. May 18, 1982) (statement of Rep. Conable); 128 Cong. Rec. 10410-11 (daily ed. May 18, 1982) (statement of Rep. Conable); 128 Cong. Rec. H1927 (daily ed. May 6, 1982) (statement of Rep. Ros-tenkowski).
. See also Sealy Power, Ltd. v. Comm’r of Internal Revenue,
. This is true even though jurisdiction for such suits in this court is not provided by 28 U.S.C. § 1346, but by the Tucker Act, 28 U.S.C. § 1491(a)(1). See Hinck v. United States,
. See also Magnone v. United States,
In Kislev, this court recognized the tie between the deposit requirement of section 6226(e)(1) and the Flora rule. Thus, in denying the motion for reconsideration in that case, it stated — "the re
. At the risk of being flagged for piling on, it is worth noting that, as a policy matter, the result reached in Kislev and Russian Recovery makes no sense. Why would Congress, on the one hand, craft a complex statute that authorizes a partner to file a petition for readjustment in either the Tax Court, a district court or this court, and then, on the other hand, erect extraordinary financial hurdles that prevent most partners from proceeding in the last two fora? It would have been far simpler, of course, to require all such petitions to be filed in the Tax Court and thereby dispense not only with the deposit requirement, but also the variety of TEFRA provisions designed to prevent multiple cases from proceeding in different fora. See, e.g., 26 U.S.C. § 6226(b)(2)-(4) (providing priority rules for multiple suits challenging a FPAA). Congress did not do this. Instead, it afforded those challenging partnership adjustments with a choice of fora no worse than what was available to partners before the рassage of TEFRA — and, as the discussion above reveals, that choice never entailed requiring a partner to pay his alleged tax liability over two to twenty years as a toll charge for proceeding in a refund fora. See Caplin & Brown, supra, at 88-89 (comparing prior law to the rules under TEFRA).
. One must be careful not to carry the refund suit analogy too far. In an action under section 6226, the plaintiff need neither file a refund claim nor demonstrate that any specific overpayment has occurred. Rather, it must simply demonstrate that the adjustments made by the FPAA are wrong, at which point the Treasury is compelled to refund the deposit previously made. Such a case is comparable to other categories of non-refund tax cases over which this court has jurisdiction, among them those authorized by section 7428 of the Code involving the classification of organizations under section 501(c)(3) of the Code. See Artuso v. United States,
. Quoted in SEC v. Chenery Corp.,