1988 Tax Ct. Memo LEXIS 577 | Tax Ct. | 1988
MEMORANDUM OPINION
SWIFT,
1988 Tax Ct. Memo LEXIS 577">*579
Partnership | Amount | |
Name | Nature of Adjustment | Adjustment |
Summerland | Disallowance of | $ 86,048 |
Ordinary Loss | ||
Reduction of Tax | 518,400 | |
Basis in Property | ||
Lahad Entendido | Disallowance of | 219,314 |
Ordinary Loss | ||
Disallowance of | 14,500 | |
Research Credit | ||
Reduction of Tax | 625,000 | |
Basis in Property | ||
Sunburst | Disallowance of | 63,731 |
Ordinary Loss | ||
Reduction of Tax | 384,000 | |
Basis in Property | ||
Sunshine | Disallowance of | 108,463 |
Ordinary Loss | ||
Reduction of Tax | 711,520 | |
Basis in Property | ||
Sunland | Disallowance of | 84,148 |
Ordinary Loss | ||
Reduction of Tax | 536,240 | |
Basis in Property | ||
Summersun | Disallowance of | 97,459 |
Ordinary Loss | ||
Reduction of Tax | 587,520 | |
Basis in Property | ||
Sumsun | Disallowance of | 95,476 |
Ordinary Loss | ||
Reduction of Tax | 669,500 | |
Basis in Property | ||
Sunclean | Disallowance of | 66,100 |
Ordinary Loss | ||
Reduction of Tax | 463,500 | |
Basis in Property |
Each FPAA was mailed by respondent to "Gran [sic] Esperanzas Partnership, 2509 Eide Street, Anchorage, Alaska 99503-2634."
On February 22, 1988, Elmer C. Pratt filed a joint petition in this Court as the Tax1988 Tax Ct. Memo LEXIS 577">*580 Matters Partner of Summerland, Lahad Entendido, Sunburst, Sunshine, Sunland, Summersun, Sumsun, and Sunclean Partnerships. (The eight partnerships listed above shall hereinafter be referred to collectively as the " partnerships".) Mr. Pratt signed the petition as the tax matters partner for each partnership. The address 7700 B Downing, Bakersfield, California 93308 is set forth in the petition, but the language in the petition is unclear as to whether it is the address of the partnerships or of Elmer C. Pratt. The petition was served on respondent on February 25, 1988.
Respondent filed his answer on April 25, 1988. The certificate of service attached to respondent's answer indicates that a copy of the answer was mailed on April 21, 1988, to petitioner Elmer C. Pratt at the Bakersfield, California address reflected in the petition rather than at the Anchorage, Alaska address to which the FPAAs were sent.
On June 6, 1988, respondent filed the instant motion to dismiss for lack of jurisdiction alleging that Elmer C. Pratt was not the tax matters partner for the partnerships for 1984, and therefore, that the petition filed by Mr. Pratt did not properly commence a partnership action1988 Tax Ct. Memo LEXIS 577">*581 with regard to respondent's FPAAs. Respondent has not moved to dismiss on the ground that Mr. Pratt filed a petition as tax matters partner beyond the 90-day period provided in
Based upon allegations made in respondent's motion, it appears that the 1984 Federal partnership return of income of each of the above-named partnerships did not designate a tax matters partner. In his motion, respondent alleges that the Commissioner used the largest-profits-interest rule of
Person Determined by Respondent | |
To Have Largest Profits Interest and | |
Partnership | Therefore To Be Tax Matters Partner |
Summerland | Angelica Muns |
Lahad Entendido | Melvin Miller |
Sunburst | Stanley H. Woster |
Sunshine | Stanley H. Woster |
Sunland | Stanley H. Woster |
Sumersum | Stanley H. Woster |
Sumsun | Stanley H. Woster |
Sunclean | Stanley H. Woster |
The record otherwise, however, does not explain who Angelica Muns, Melvin Miller, and Stanley H. Woster are or where they reside. Other than respondent's allegations, no document in the record explains or supports respondent's identification1988 Tax Ct. Memo LEXIS 577">*582 of Angelica Muns, Melvin Miller, and Stanley H. Woster as either a partner or tax matters partner of any of the partnerships.
The certificate of service attached to respondent's motion to dismiss indicates that a copy of the motion was sent to Elmer C. Pratt at the Bakersfield, California address reflected in the petition. The certificate of service does not indicate that copies of respondent's motion also were sent to the Anchorage, Alaska address reflected in the FPAAs or to Angelica Muns, Melvin Miller, or Stanley H. Woster.
Under
1988 Tax Ct. Memo LEXIS 577">*584 The law is clear that when an individual or entity that is not a tax matters partner files a petition on behalf of a partnership within the 90-day period provided under
But for the insufficiency of information provided in respondent's motion, we might have been inclined to grant respondent's motion and to dismiss the petition filed herein. Elmer C. Pratt does not appear to have been the tax matters partner of the partnerships for 1984, and Mr. Pratt filed no response to respondent's motion to dismiss.
As explained, respondent's motion to dismiss alleges that the identification of each partnership's tax matters partner was based on the profits interest of each named tax matters partner. Respondent has not provided, however, any corroborative evidence of the specific profits interest of Angelica Muns, Melvin Miller, or Stanley H. Woster. Furthermore, respondent has not provided a copy of a 1984 Federal partnership return of income for any of the partnerships or any other document reflecting the names of the partners,their addresses, and their profits interests.
In addition, respondent's motion does not explain the Anchorage, Alaska address to which the FPAAs for the partnerships were mailed, nor does the motion explain the difference between the Anchorage, Alaska address reflected in the1988 Tax Ct. Memo LEXIS 577">*586 FPAAs and the Bakersfield, California address reflected in the petition filed by Elmer C. Pratt. The record does not indicate whether the partnerships were limited partners of Grand Esperanzas Partnership or if the partnerships were limited partners of a partnership in which Grand Esperanzas was the general partner. Further, respondent has failed to provide any explanation of the relationship between Grand Esperanzas on the one hand and the partnerships, Angelica Muns, Melvin Miller, Stanley H. Woster, and Elmer C. Pratt, on the other. The record also does not disclose whether the Anchorage, Alaska address reflected in the FPAAs is the last known address of each partnership or the purported last known address of the tax matters partner for each of the partnerships.
Respondent's failure to provide any evidence verifying that the Anchorage, Alaska address to which the FPAAs were mailed was the last known address of either the partnerships or their respective tax matters partners, coupled with his failure to corroborate his identification of the tax matters partners cause this Court to question whether the 90-day period in which each partnership's tax matters partner may file a petition1988 Tax Ct. Memo LEXIS 577">*587 as provided in
Due to the above-mentioned defects, respondent's motion will be denied without prejudice to respondent to file a revised motion in which proper documentation and appropriate information is provided and with respect to which adequate service is made on the individual who filed the petition as tax matters partner and on each individual respondent determines to be the tax matters partner for each of the named partnerships.
We note, however, that because the petition Mr. Pratt filed as tax matters partner appears to have been filed beyond the 90-day period provided in
Footnotes
1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as in effect during the year in issue.↩
2.
Sec. 6226 provides, in relevant part --SEC. 6226 . JUDICIAL REVIEW OF FINAL PARTNERSHIP ADMINISTRATIVE ADJUSTMENTS.(a) Petition by Tax Matters Partner. -- Within 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 such taxable year with --
(1) the Tax Court
(2) the district court of the United States for the district in which the partnership's principal place of business is located, or
(3) the Claims Court.
(b) Petition by Partner Other Than Tax Matters Partner. --
(1) In general. --If the tax matters partner does not file a readjustment petition under subsection (a) with respect to any final partnership administrative adjustment, any notice partner (and any 5-percent group) may, within 60 days after the close of the 90-day period set forth in subsection (a), file a petition for a readjustment of the partnership items for the taxable year involved with any of the courts described in subsection (a).↩
3. The procedure for mailing a FPAA is provided in section 301.6223(a)-1T, Temporary Proced. and Admin. Regs.,
52 Fed. Reg. 6783↩ (March 5, 1987).