NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

BASR PARTNERSHIP AND WILLIAM F. 

PETTINATI, SR., TAX MATTERS PARTNER,

Plaintiffs-Appellees,

v.

UNITED STATES,

Defendant-Appellant.

______________________ 

2014-5037

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:10-cv-00244-SGB, Judge Susan G. 

Braden.

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BASR PARTNERSHIP AND WILLIAM F. 

PETTINATI, SR., TAX MATTERS PARTNER,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

______________________ 

2014-5040

______________________ 

Case: 14-5037 Document: 17 Page: 1 Filed: 04/16/2014
2 BASR PARTNERSHIP v. US

Appeal from the United States Court of Federal 

Claims in No. 1:10-cv-00244-SGB, Judge Susan G. 

Braden.

______________________ 

ON MOTION

______________________ 

Before PROST, O’MALLEY and TARANTO, Circuit Judge. 

TARANTO, Circuit Judge. 

O R D E R

Before the court is the government’s motion to dismiss 

a cross-appeal filed by BASR Partnership et al. (“BASR”). 

For the following reasons, we grant the motion.

In October 2000, the Internal Revenue Service (“IRS”)

received BASR’s partnership tax returns for the tax 

periods ending June 12, 1999 and December 12, 1999. 

Following an audit of those returns, the IRS issued a 

Final Partnership Administrative Adjustment (“FPAA”) 

in January 2010, requiring BASR to pay an additional 

$735,533 in taxes and penalties. 

After paying the adjusted taxes, BASF filed the underlying complaint in the Court of Federal Claims seeking 

a refund, arguing that the FPAA was untimely under 

either 26 U.S.C. § 6229 or 26 U.S.C. § 6501. It won, and, 

in doing so, received a judgment that the FPAA was 

untimely under § 6501 and “there are no adjustments to 

partnership items on accuracy-related penalties for BASR 

Partnership’s tax periods ended June 12, 1999, and December 22, 1999.” The government has appealed, and so 

has BASF. 

The rules concerning when to file a cross-appeal are 

relatively straightforward: “It is only necessary and 

appropriate to file a cross-appeal when a party seeks to 

enlarge its own rights under the judgment or to lessen the 

Case: 14-5037 Document: 17 Page: 2 Filed: 04/16/2014
 BASR PARTNERSHIP v. US 3

rights of its adversary under the judgment.” Bailey v. 

Dart Container Corp. of Mich., 292 F.3d 1360, 1362 (Fed. 

Cir. 2002). It is improper to file a cross-appeal to merely 

raise an alternative ground for affirming the judgment 

that is supported by the record. See Jaffke v. Dunham, 

352 U.S. 280, 281 (1957). 

BASF contends that it filed its cross-appeal to preserve its argument that § 6229 would also have precluded

the IRS from assessing additional taxes. But, this is not a 

proper ground for a cross-appeal. The Court of Federal 

Claims’ bottom line was that the FPAA adjusting BASF’s 

taxes was improper as untimely and could not be enforced. Because this argument would merely provide an 

alternative ground to support that judgment, the crossappeal must be dismissed. BASF, of course, may raise its 

argument in its response brief. See, e.g., Datascope Corp. 

v. SMEC, Inc., 879 F.2d 820, 822 n.1 (Fed. Cir. 1989) (an 

appellee may assert alternative grounds for affirmance

supported by the record). 

Accordingly, 

 IT IS ORDERED THAT: 

(1) The motion is granted. 2014-5040 is dismissed. 

The revised official caption in 2014-5037 is reflected 

above. 

(2) Each side shall bear its own costs in 2014-5040. 

 FOR THE COURT

 /s/ Daniel E. O’Toole 

 Daniel E. O’Toole

 Clerk of Court

s19

ISSUED AS A MANDATE (as to 2014-5040 only): 

April 16, 2014

Case: 14-5037 Document: 17 Page: 3 Filed: 04/16/2014