N OTE : This o rder is non precedential. 

# 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: 04/16/2014BASR PARTNERSHIP v. US 2

Appeal from the United States Court of Federal Claims in No. 1:10

- cv

- 00244

- SGB, Judge Susan G. Braden.

______________________
ON MOTION

______________________
Before P ROST , O’M ALLEY and T ARANTO , Circuit Judge

. T ARANTO , 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 Adju stment ( “ FPAA ” ) in January 2010, requiring BASR to pay an additional $735,533 in taxes and penaltie s. After paying the adjusted taxes , BASF filed the u nderlying complaint in the Court of Fed eral Claims seeking

a re fund, 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 judgmen t 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 D ecember 22, 19 99 .” The government has appealed, and so has BASF.

The r ules 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: 04/16/2014BASR 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 pr eserve its argument that § 6229 would also have precluded the IRS from assessing addi tional taxes

. But, t his is not a proper ground for a cross

- appe al. The C ourt of Federal Claims’ bo ttom line was that the FPAA adjust ing BASF’s
taxes was improper as untimely and could not be e nforced . Be cause this argu ment would merely provide an alternative ground to support tha t judgment, the cross

appeal 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 affirm ance supported by the record).
Accordingly,

I T I S O RDERED T HAT : (1) The motion is granted. 2014

- 5040 is dismissed. The revis ed official caption in 2014

- 5037 is reflected above.
(2) Each side sh all bear its own costs in 2014

- 5040

. F OR THE C OURT

/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