concession that the commissioner made on page six of their answering brief that was filed in this case and i do this because i think it considerably additional requirements are minute under nine dollars of the partnership however the agreement provided that the recipient of the interest would be an unadmitted partnership yacht reference to point nine dollars the partnership agreement because those additional requirements under nine dollars of the partnership agreement are necessary if the commissioner has admitted that the texas partnership law and this partnership agreement conveys and  asin the partnership interest and that's exactly what the texas business organization code specifies for an assignment of a partnership interest and also for the property interest that the recipient of the assignment receives and under this court's precedent in the bright case and adam's case the property transferred is determined under texas partnership law and or the partnership agreement you don't dispute that the signature of elizabeth straight off satisfies the partnership agreement in terms of its ability to transfer as only that signature i'm sorry you know you don't dispute that it is only that signature of elizabeth straight off required to transfer the interest is that correct its limited partnership and interest this has been a red herring in this case from the very beginning talking about this is a transfer of all of his limited partnership  certainly was we stipulated that and they did the government nor the taxpayer could change that in any way and not only was it stipulated but there were no pleadings ever filed by the government raising an issue under nine dollars of the partnership agreement saying that somebody had made a request to become a limited partner what the government is argued all along and is totally erroneous is that the assignment standing alone creates the limited partner says the assignment by itself creates a limited partner interest and that's because texas partnership law under the texas been this organization that the property after strands furred is determined under texas partnership low and it's not the piece of property that the transfer be assigned or th in this case the decision to sign it's what was a property enters under texas partnership law that the ass and the rich seed and in this case the government has  in that admission or that concession they've said that under the texas law and under the partnership agreement except for nine point seven it conveyed admitted s in the interest and this becomes very important when you consider the fact that there's no allegation anywhere in this record that there are any documents or edstrom instead of been executed by anybody agreeing to become a limited partner  ask the general partner to be admitted as a limited partner and they'd have to prepare the documents and then they'd have to sign off on everything and the important thing is that the the recipient of the assignment would have to agree to all the obligations of the limited partnership and there's no documents in this record that show anybody even considered that now i mentioned very lightly that there were no consents in this record for anybody becoming a limited park that's not just a casual reference that is foundational under texas partnership l for any recipient of a partnership interest to becoming a limited partner he's got to request it it just automatically happen and as i mentioned that's the red hair that the government's been promoting all along in this case they're saying well the assign partnership interest i submit to this court that that is not possible under texas partnership law and certainly not possible under the partnership agreement in this case now i raise this concession because the concession itself affects the commissioner's statutory notice in this case the statutory notice computed the deficiency that was due the commissioner's expert witness testified that she only bad news a limited partnership absent the qualifications on a nine dollars making clear that the ass and they required to be requested to become a limited partner then the notice of deficiency the amount of deficiency determined is wrong because on cross examination the government's expert admitted that she never willing buyer and willing seller fair market value computation she testified that a willing buyer would want to know about that outstanding  assignment and then it would in fact in a rd her valuation for lack of control oh go back to the notice of deficiency issue that you raised and i think you just made reference to it yes or what is the or the best case that you can cite to us that supports your position that the notice of deficiency must be more specific than simply the amount your honor that is my brief and what i'm looking for in particular is a th circuit case or any any other circuit or supreme court case that i  discusses the whole issue i read of what i'm looking for is the what you think is the best case that we should look at that supports the argument the supreme court cases that have confirmed that when there is a final agency does say zhen and and the statute did not provided that the and that's a different that that's part of it but what i'm referring to goes beyond just the tenor of doctrine because  came of we have your opening argument you reserve your rebuttal time we'll hear from the commissioner's office at this thank you y think your honour's in there is the court julie of that house for the commissioner i would like to respond st to the contention that the government has conceded that what was conveyed by v partnership agreement and the documents to of assignment of interest was anything other than a full limited partnership interest we do not concede anything of the sort to the contrary we maintain that the determination when the tax court has interpreted the agreement your honor it is making findings of fact if it is construing terms it is reaching conclusions of law here it's going down the checklist and making sure that the conditions of the conveyance were met as described by the partnership that is a factual finding you're looking for signatures you're looking for signatures that agree to terms or not constru ing those terms and here as your honor in fact noted those signatures were in evidence and the provisions of the agreement now texas law says we established the default conditions but the terms of the partnership agreement control five of those terms the interest that was conveyed in the assignment agreement was a people limited partnership interest section nine  the partnership agreement on page four hundred and forty one of the record sets three requirements for a transfer of a limited partnership interest the general partner must consent and that is evident in the record the assignment must be a permitted transfer which is also in the record was stipulated in fact and the recipient of the conveyed must execute all of the documents required by the general partner to confirm that they are agreeing to be bound by the partnership agreement and again that is in the record here we have three signatures which coincidentally happened to be one signature three times one person on all sides of th texas law requires no distinction i think that's about the actual bit herring that's been presented here this morning texas law sets your default condition and says you're going to convey massively interest unless the partnership agreement the governing document of the entity sets other conditions and when it does then you look at the agreement and it's binding as a contract is binding and that is what the tax court did here and that perhaps to judge the hearts question is more of a because the signature of the general partner here is expressly as approved by what i'm approving that what this agreement provides for and the language of the agreement is expansive warranty date it's binding on arizona signs it does not limit what is conveyed in any meaningful sense there is no indication that what it is conveying is a non voting interest is impaired in any way from the rights of a full limited partner if there is no lack of control baked in that cake what's being conveyed is everything that frank had and while texas law might say even if you're doing that texas law in the absence of other provisions will only call that an asset in the interest here we have those other provisions and those other provisions on the face of the partnership agreement were met that is why the limited partnership interest was conveyed on here that there was not an acidly interest in the revocable trust to the extent that there may be a factual dispute i know there were a lot of stipulations in this case before it was submitted  to the extent that there's any factual dispute who would have the burden would that be the commissioner's burden to support the deficiency claim or is it the taxpayer's burden to to to  counteract that deficiency notice that is a question of law that the tax court resolved on several motions in favor of the commissioner and held that the taxpayer the state here had that but in they've shown no error in those conclusions on appeal so we submit that were there any socks or meeting in dispute those would be the state's burden to demonstrate the determination of the commissioner comes with a presumption of correctness although the issues resolved by looking to the language of what is being conveyed in my assignment of interest it is not a non voting interest it language approved by a does not imply consent and that's that's a that's a hair splitting exercise that the tax court did not engage in and no one urged it to neither party took the position that approved by was not a language of con would also submit that if the court is troubled he talks court's reading of the formal effect of the signed agreement the substance of what was conveyed is entirely consistent with the transfer of a complete limited partnership interest there there were no carve outs for voting rights in the assignment document the tax  to the trust independently in other words the expert independent we go in and try to value whether we back up a if you're to look at the interest that was transferred to the single limited partner owning more than seventy five percent of the trust asked for the partnership have the right to dismiss the general partner at any time which would dissolve the trust and because what was conveyed in the assignment document was when they do not in pursuit of the interest she said this effectively is a person who has control over the entire text so i see no basis to apply a lack of control discount since you can dissolve the partnership by we also note that the trust was revocable and frank could have revoked at any time during his life withdraw all of the assets and they had decided that he wanted to step back into the shoes of what he conveyed case where votes are not held on meaningful matters in a partnership here and no votes were ever held and we also note as as stated earlier that one person represented every party to that you know made in a take court but his is silver bullet argument so to speak is that the texas the texas law to texas partnership law was misapprehended by the tax court and the and the commission's position here so those are your among other things is this soldier overarching the government's position is totally in absolute to what the texas partnership law provides cetera et cetera so can you help me out just kind of because i'm sure when he comes back up these coming back there and then shifted it efficient texas partnership law does not require any separate documentation for an signee to request admission to a limited partnership texas law establishes the threshold conditions for that govern a partnership in the  contrary terms in the partnership agreements once you've got terms in a partnership agreement those control and those are a contract binding on the parts and texas law has helped texas law also provides that broadly to all documents contain all rights and appurtenances to an item of property including encourage rights such as voting rights that are never exercised so there is a bill inconsistency here was talked of texas partnership law where an agreement was executed to convey an interest in a partnership from a limited partner to a rd party which then complied on its face as the tax court held with the three criteria for admission to the partnership established by the partnership agreement once those three boxes were checked texas law is satisfied because texas law says look to the terms of the agreement and texas law requires nothing transferred to the revocable trust wasn't assoc me interest then the notice of deficiency is wrong that's why you have a deficiency proceeding in the tax court when you believe a notice of deficiency has reached a wrong number you have a de novo proceeding to redetermine that deficiency and indeed the outcome here was a different number other things that happened in between there were credits were applied but the notice of deficiency is not a final determination it's an initial determination it's your ticket into tax court and a notice of deficiency that's wrong is why you go to tax court it is not an invalid or insufficient notice under seven thousand five hundred and twenty two dollars of the internal revenue code the code in fact says that even if you would notice that deficiency doesn't adequately explain the basis for the deficiency or gets the amount do wrong that won't invalidate the notice you can still go to tax court you can still get a get that deficiency before  novo proceeding that results in a judgment which is then reviewable in the court of appeals where we are not and the administrative procedure act does not displace that those procedures were in place before the a they survived the enactment of the a p a the a p a judicial review is only available when there is no adequate remedy of law and that existing well articulated complex statutory governing and because the a p a does not displace those there is no need to make allowances for the a p a when amendments are made to clarify any ambiguity as in that existing functioning statutory proce look at what she's talking about she's talking about the property that was conveyed from pride straight off to his revocable trust we stipulated that it was an authorized transfer and under the partnership agreement she was off her she had to approve the have signed not up to the  the thing the government refuses to recognize here is that the property received by the revocable trust under texas partnership love was period doesn't apply and even went so far as to say in that case that we cannot allow an exemption which is not authorized by the statute i mean that statute is ironclad and probably the thirty seconds i've got left i would like to address the chin or issue it is almost hornbook alone now days that when the reviewing court of an agency final decision is based on the ground that was not put forth by the agency that the supreme court says it cannot be sustained and it's important to recognize here that this just didn't happen by happenstance i'm a judge  but it's worth considering go too far or go too far well all i will say is that the judge never considered our arguments in the court the low and i base that on the fact that throughout the bring spiled in the tax court the taxpayer admonish the court about  precedent controlling precedent for not only the cherry issue but for the partnership issues and when you got down to the valuation we have pointed out that the commissioners valuation case has totally collapsed i mean his expert has testified that she never even considered the i'll let you make a concluding sentence your honor we have presented and i'm going to lead caves to reverse the minute break and we'll be right back