IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20494

JAMES T. RODGERS; CLAUDETTE M. RODGERS,

 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA, 

 Defendant - Appellee

************************************************************************

AVRUM M. STEIN; JOAN STEIN,

 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA, 

 Defendant - Appellee

***********************************************************************

DAVID S. HOLLAND; JACQUE N. HOLLAND,

 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA, 

 Defendant – Appellee

United States Court of Appeals

Fifth Circuit

FILED

November 30, 2016

Lyle W. Cayce

Clerk

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CONSOLIDATED WITH 15-41176

LINVEL M. BINGHAM; VICKI L. BINGHAM,

 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA,

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Appeal from the United States District Court 

for the Eastern District of Texas

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

These consolidated tax refund suits are the latest in a line of cases 

stemming from faulty American Agri-Corp (“AMCOR”) investments. In the 

1980s, Plaintiffs James and Claudette Rodgers, Avrum and Joan Stein, David 

and Jacque Holland, and Linvel and Vicki Bingham (“Taxpayers”), were 

partners in AMCOR partnerships that the Internal Revenue Service (“IRS”) 

investigated as shams.1 Taxpayers settled with the IRS and paid the amounts 

assessed, but now seek refunds claiming that the IRS’s assessments were 

untimely and that the IRS failed to issue notices of deficiency. Our decision in 

 1 Irvine v. United States, 729 F.3d 455, 458 (5th Cir. 2013). Claudette Rodgers, Joan Stein 

and Jacque Holland are parties because they filed joint returns with their spouses. The others 

were AMCOR partners.

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Irvine v. United States2 forecloses both arguments. Here, like in Irvine, the 

district courts lack subject matter jurisdiction to hear these refund claims. 

Additionally, the variance doctrine forecloses Taxpayers’ argument that the 

IRS failed to issue notices of deficiency because Taxpayers did not make such 

an argument in their claims for refund before the IRS. Both district courts 

granted summary judgment for the IRS. We affirm. 

I. Statutory Background

The Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), which 

amended the Internal Revenue Code, is the statute at the center of this case.3

As the Supreme Court explained in U.S. v. Woods:

A partnership does not pay federal income taxes; instead, its 

taxable income and losses pass through to the partners. 26 U.S.C. 

§ 701. A partnership must report its tax items on an information 

return, § 6031(a), and the partners must report their distributive 

shares of the partnership’s tax items on their own individual 

returns, §§ 702, 704. 

Before 1982, the IRS had no way of correcting errors on a 

partnership’s return in a single, unified proceeding.4

In an effort to address these difficulties, Congress enacted TEFRA.5

“TEFRA requires partnerships to file informational returns reflecting the 

 2 729 F.3d 455 (5th Cir. 2013).

3 Formerly codified generally at 26 U.S.C. §§ 6221–6233; P.L. 97–248 (Sept. 3, 1982), 96 

Stat. 324. Alexander v. United States, 44 F.3d 328, 330 (5th Cir. 1995) (“In 1982, Congress 

enacted [TEFRA] to improve the auditing and adjustments of income tax items attributable 

to partnerships.” (internal citation omitted)). Notably, the Bipartisan Budget Act of 2015 

repealed and replaced TEFRA, and struck 26 U.S.C. § 7422(h), the jurisdictional provision at 

issue here. See Bipartisan Budget Act of 2015, Pub. L. No. 114–74 (Nov. 2, 2015), 129 Stat. 

584; McNeill v. United States, No. 15-8095, WL 4611046, at *5 (10th Cir. Sept. 6, 2016) 

(“Congress has recently revamped the process for auditing partnerships in order to permit 

the IRS, beginning in 2018, to recoup taxes from the partnership itself rather than the 

partners individually.” (citing Bipartisan Budget Act of 2015)).

4 134 S. Ct. 557, 562 (2013).

5 See id. at 563.

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partnership’s income, gains, deductions, and credits. Individual partners then 

report their proportionate share of the items on their own tax returns.”6

TEFRA established three categories for items considered in the tax treatment 

of a partnership: “partnership items,” “nonpartnership items,” and “affected 

items.”7 TEFRA also created a two-stage procedure for the IRS to determine 

partnership-related tax matters: first, the IRS assesses partnership items, 

making any adjustments it deems necessary, and then it may initiate 

proceedings against individual partners.8

A. Two-Stage Proceedings

At the first step, “[i]f the IRS adjusts any partnership items on a 

partnership’s informational income tax return, it must notify the individual 

partners by issuing [a Notice of Final Partnership Administrative Adjustment 

(“FPAA”)].”9 When the FPAA becomes final, the IRS may tax the individual 

partners for their shares of the adjusted partnership items.10 Partners can, 

however, challenge the FPAA in partnership-level proceedings before the 

 6 Irvine, 729 F.3d at 459 (citing Weiner v. United States, 389 F.3d 152, 154 (5th Cir. 2004)).

7 26 U.S.C. § 6231(a)(3)–(5) (“(3) Partnership item.--The term “partnership item” means, 

with respect to a partnership, any item required to be taken into account for the partnership’s 

taxable year under any provision of subtitle A to the extent regulations prescribed by the 

Secretary provide that, for purposes of this subtitle, such item is more appropriately 

determined at the partnership level than at the partner level. (4) Nonpartnership item.--The 

term “nonpartnership item” means an item which is (or is treated as) not a partnership item. 

(5) Affected item.--The term “affected item” means any item to the extent such item is affected 

by a partnership item.”).

8 See Woods, 134 S. Ct. at 563.

9 Irvine, 729 F.3d at 460 (citing 26 U.S.C. § 6223; Duffie v. United States, 600 F.3d, 362, 

366 (5th Cir. 2010)). See also Anisa Afshar, The Statute of Limitations for the Tefra 

Partnership Proceedings: The Interplay Between Section 6229 and Section 6501, 64 TAX LAW.

701, 705 (2011) (“An FPAA is the TEFRA’s equivalent of a ‘notice of deficiency’ for 

partnerships. The FPAA puts the partners on notice that the [IRS] disagrees with their 

treatment of partnership items and intends to adjust it.” (citation omitted)).

10 Curr-Spec Partners, L.P. v. C.I.R., 579 F.3d 391, 394–95 (5th Cir. 2009) (“After the 

FPAA becomes final, the Commissioner may assess tax to the individual partners whose tax 

returns for the year or years in question remain open under IRC § 6501(a), for those partners’ 

distributive shares of the adjusted partnership items.”).

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FPAA becomes final. Within 90 days after a FPAA issues, the “tax matters 

partner” (“TMP”)11 may file a petition for readjustment of the partnership 

items in Tax Court or federal district court.12 If the TMP does not challenge 

the proposed partnership adjustments within 90 days, non-TMP notice 

partners may file a petition for readjustment within the following 60 days.13 If 

a partnership-level challenge is filed–either by the TMP or by another partner–

each partner in the partnership is deemed a party to the case.14 “Once the 

adjustments to partnership items have become final, the IRS may undertake 

further proceedings at the partner level to make any resulting ‘computational 

adjustments’ in the tax liability of the individual partners.”15

“If a partner individually settles his or her partnership tax liability with 

the IRS, ‘the partner will no longer be able to participate in the partnership 

level litigation, and will be bound instead by the terms of the settlement 

agreement.’”16 “The TMP may bind ‘non-notice’ partners to a settlement 

agreement resolving partnership items if the TMP expressly states in the 

agreement that it ‘shall bind the other partners.’”17

B. Statutes of Limitations

The general tax assessment statute of limitations is codified at § 6501(a). 

It provides that when a tax return is filed, the IRS has three years from the 

filing date to assess taxes.18 However, when the taxes are attributable to a 

 11 See 26 U.S.C. § 6231(a)(7).

12 Id. § 6226(a) (in the federal district court for the district in which the partnership’s 

principal place of business is located). Alternatively, the TMP may file in the Court of Federal 

Claims. Id. 13 Id. § 6226(b)(1).

14 Id. § 6226(c)(1).

15 Woods, 134 S. Ct. at 563 (citing 26 U.S.C. § 6231(a)(6)).

16 Irvine, 729 F.3d at 460 (quoting Weiner, 389 F.3d at 155).

17 Duffie, 600 F.3d at 367 (citing 26 U.S.C. § 6224(c)(3)(A)).

18 See 26 § U.S.C. 6501(a) (“[e]xcept as otherwise provided in this section, the amount of 

any tax imposed by this title shall be assessed within 3 years after the return was filed . . . 

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partnership item or affected item, TEFRA allows for that three-year statute of 

limitations to be extended under certain circumstances.19 Section 6229(a)

states that taxes that are

attributable to any partnership item (or affected item) . . . shall not 

expire before the date which is 3 years after the later of–

(1) the date on which the partnership return for such taxable 

year was filed, or

(2) the last day for filing such return for such year (determined 

without regard to extensions).

Section 6229(a) “does not establish an independent statute of limitations 

for issuing FPAAs.”20 This means, as this Court explained in Curr-Spec 

Partners, L.P. v. Commissioner of Internal Revenue, that

the Commissioner may issue an FPAA at any time, subject only 

to the practical limitation that the FPAA may affect only those 

partners whose individual returns remain open under IRC 

§ 6501(a) or some extension thereto, such as the minimum 

period of IRC § 6229(a), before which the statute of limitations 

may not expire. Stated differently, the Commissioner is free to 

assess partnership-item tax on any taxpayer who, on his 

individual tax return, has taken advantage of the nowchallenged partnership items within the preceding three years 

(or, in the event of an extension, within the extended statute of 

limitations).21

 

and no proceeding in court without assessment for the collection of such tax shall be begun 

after the expiration of such period.”); Curr-Spec Partners, L.P., 579 F.3d at 393, n.1 (“Even 

though the statute of limitations runs three years after the date that the return was filed . . . 

a return filed early is generally deemed filed on the date that the return was due, thereby 

giving the Commissioner more than three years within which to assess tax.” (citing 26 U.S.C. 

§ 6501(b)(1))).

19 See Curr-Spec Partners, L.P., 579 F.3d at 396–97.

20 Id. at 393.

21 Id. at 399.

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Under § 6229(b), the three-year statute of limitations for partnership 

items can be extended by agreement.22 Under § 6229(d), the statute of 

limitations is tolled if an FPAA is mailed to the TMP.23 If, following the FPAA, 

the TMP or another partner petitions for readjustment at the partnership 

level, the limitations period is suspended until one year after the conclusion of 

those partnership-level proceedings.24 Finally, “[i]n the case of a failure by a 

partnership to file a return for any taxable year, any tax attributable to a 

partnership item (or affected item) arising in such year may be assessed at any 

time.”25

C. Notices of Deficiency

In general, upon the IRS’s determination of a tax deficiency, 26 U.S.C. 

§ 6212(a) requires the IRS to send the taxpayer notice of that deficiency. Such

notices allow partners to challenge the alleged deficiency in the Tax Court 

before paying it.26 However, when the tax assessment is for a “computational 

 22 26 U.S.C. § 6229(b)(1) (“The period described in subsection (a) (including an extension 

period under this subsection) may be extended—

(A) with respect to any partner, by an agreement entered into by the Secretary and 

such partner, and 

(B) with respect to all partners, by an agreement entered into by the Secretary and 

the tax matters partner (or any other person authorized by the partnership in writing 

to enter into such an agreement), 

before the expiration of such period.”).

23 Weiner, 389 F.3d at 155; 26 U.S.C. § 6229(d) states: “If notice of a [FPAA] with respect 

to any taxable year is mailed to the [TMP], the running of the period specified in subsection 

(a) (as modified by other provisions of this section) shall be suspended—

(1) for the period during which an action may be brought under section 6226 (and, if 

a petition is filed under section 6226 with respect to such administrative adjustment, 

until the decision of the court becomes final), and 

(2) for 1 year thereafter.”

24 26 U.S.C. § 6229(d).

25 Id. § 6229(c)(3).

26 Woods, 134 S. Ct. at 562 (citing 26 U.S.C. § 6213(a)).

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adjustment,”—such as those that follow partnership-level adjustments27—the 

IRS is not required to issue a notice of deficiency, subject to two exceptions.28

Relevant here, a notice of deficiency is required if a deficiency “is attributable 

to [] affected items which require partner level determinations.”29

D. Jurisdictional Limitations

TEFRA limits the district courts’ subject matter jurisdiction. Although 

district courts generally have jurisdiction over a partner’s refund claim,30

§ 7422(h) specifically deprives refund courts of jurisdiction over a partner’s

claim for refund attributable to a “partnership item,” with limited exceptions.31 

II. Facts

These consolidated cases are part of a series of tax refund suits that stem 

from limited partnerships managed by AMCOR. This Court has described 

AMCOR partnerships before:

These partnerships had as stated goals acquiring agricultural 

land, investing in agricultural ventures, and growing crops. 

AMCOR solicited investments from high-income professionals 

across the country. Each partner in an AMCOR partnership would 

receive a projected tax loss from crops planted in the first year of

roughly twice that partner’s investment. Investors paid the 

farming expenses up front and deducted the amount invested on 

their tax returns. The next year, when the crops were harvested, 

the amount of loss in excess of the amount invested would be 

subject to taxes. However, the farming expenses typically exceeded 

any income realized from the farming activities.32 

 27 See Woods, 134 S. Ct. at 563 (“Once the adjustments to partnership items have become 

final, the IRS may undertake further proceedings at the partner level to make any resulting 

‘computational adjustments’ in the tax liability of the individual partners. § 6231(a)(6).”).

28 26 U.S.C. § 6230(a)(1).

29 Id. § 6230(a)(2). The other exception is not at issue. See id. § 6230(a)(2) (exception when 

items “become nonpartnership items” for specified reasons.).

30 28 U.S.C. §§ 1340, 1346(a)(1); Irvine, 729 F.3d at 460.

31 26 U.S.C. § 7422(h); see also Irvine, 729 F.3d at 460. Taxpayers have not argued that 

the two exceptions in the text of § 7422(h) are relevant here.

32 Duffie, 600 F.3d at 367 (citation omitted); accord Irvine, 729 F.3d at 457–58.

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Here, Taxpayers were partners in four different AMCOR partnerships. 

The Steins were partners in Agri-Venture Associates (“AVA”) in 1984; the 

Binghams were partners in Emperor Seedless-85 (“ES85”) in 1985; the 

Hollands were partners in Canyon Desert Vineyards (“CDV”) in 1985; and the 

Rodgers were partners in Agri-Venture Fund (“AVF”) in 1985 and 1986.33 By 

1987, all of the partnerships and Taxpayers had filed their tax returns for the 

years at issue. Notably, however, AVA’s 1984 partnership tax return was 

signed by “Joseph Voyer, Treasurer,”34 based on which the parties dispute the 

validity of the return.

“In 1987, the IRS began an investigation and audit into the AMCOR 

partnerships to determine whether they were impermissible tax shelters.”35

The IRS asserts that in 1988, the TMPs for AVF, CDV and ES85 signed Forms 

872-P, which extended the IRS’s assessment periods for each of the 

partnerships until either April 30, 1991, or, if a FPAA was sent to the 

partnership, “until one year after the date on which the determination of 

partnership items became final.” Taxpayers disagree and assert that the 

“admissible evidence disproves that ‘[i]n 1988, the [TMP] for the partnerships 

including [AVF, CDV, and ES85] signed’ alleged extensions.”36

In April of 1991, the IRS issued FPAAs for each of the four partnerships.

Shortly thereafter, partners in each of the partnerships initiated suits in the 

Tax Court which challenged the FPAAs for, among other reasons, violating the 

statute of limitations. Notably, Taxpayers allege they did not participate in 

 33 The Rodgers’s refund claim for 1986 is dependent on their 1985 refund claim.

34 According to Agri-Cal Venture Associates et al. v. C.I.R., 80 T.C.M. (CCH) 295 (T.C. 

2000), Joseph Voyer was not apparently a partner in the AVA partnership, and instead was 

an officer of AMCOR.

35 Duffie, 600 F.3d at 367.

36 This Court could only locate the Form 872-P for ES85 (signed by George L. Schreiber 

as TMP for ES85). Taxpayers assert that Fred Behrens, not George Schreiber, was the 

statutory TMP of AVF, CDV, and ES85, and thus contend that this 872-P Form is invalid. 

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these suits, arguing that the version of § 6226(d)(2) in effect at the time barred 

them from doing so because their assessment periods had expired by 1990 

(three years after they filed their tax returns). Taxpayers are correct that the 

version of 28 U.S.C. § 6226 in effect in 1991 barred partners from being treated 

as parties to another partner’s partnership suit if “the period within which any 

tax attributable to such partnership items may be assessed against that 

partner expired.”37 Similarly, § 6226(d)(2) barred partners with expired tax 

assessment periods from filing a readjustment petition.38 However, the parties 

dispute whether Taxpayers’ assessment periods were expired, such that the 

1991 provisions barred them from joining or taking action.39 The Tax Court 

suits (that Taxpayers insist they were not parties to) were consolidated for 

disposition of the statute of limitations issue. The parties filed cross-motions 

for summary judgment, which the Tax Court denied in 1993, finding that there 

were “genuine, and perhaps crucial, issues of material fact” to be resolved. In 

1994, the original consolidation was severed, and both the partners and IRS 

moved to reconsider the 1993 Order. 

Between 1997 and 1999, Taxpayers each settled with the IRS.40 In these 

settlements, which were silent as to the statute of limitations issue, Taxpayers 

 37 26 U.S.C. § 6226(d)(1)(B) (1991), amended by Pub. L. 105-34, § 1239(b), 111 Stat. 1026, 

1027, 1028 (1997) (amended 2015).

38 26 U.S.C. § 6226(d)(2) (1991) (amended 2015).

39 In 1997, § 6226(d) was amended to allow partners formerly barred from participating 

in partnership-level proceedings to participate “solely for the purpose of asserting that the 

period of limitations for assessing any tax attributable to partnership items has expired with 

respect to such person, and the court having jurisdiction of such action shall have jurisdiction 

to consider such assertion.” See 26 U.S.C. § 6226(d)(1)(B). Importantly, this amendment only

applied to partnership tax years ending after August 5, 1997. Taxpayer Relief Act of 1997, 

Pub. L. 105-34, § 1238, 111 Stat. 1026 (1997). Therefore, if Taxpayers were in fact barred 

from challenging the IRS’s FPAAs, they assert the 1997 amendment did not affect their 

ability to participate in partnership-level proceedings for their claims from the late 1980s.

40 Generally, when a partner settles with the IRS, “the partnership items of a partner . . 

. shall become nonpartnership items.” 26 U.S.C. § 6231(b)(1)(C). However, in Weiner v. United 

States, this Court determined that – for the purpose of determining if the Court had 

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agreed to pay additional income tax and interest as a result of the IRS’s 

adjustments to partnership items. Taxpayers paid the IRS in full, and now 

seek to recover these payments in these refund suit.

Meanwhile, on February 2, 1998, the IRS and Tax Court partners filed a 

joint motion to withdraw their earlier motions for reconsideration of the 1993 

Order. But between April 9, 1999 and June 29, 2000, the TMPs intervened and 

ultimately agreed to try the statute of limitations issue, which developed into 

Agri-Cal Venture Associates v. Commissioner of Internal Revenue (“Agri-Cal”). 

Agri-Cal was the consolidated case of several partnerships, including AVF (in 

which the Rodgers were partners) and AVA (in which the Steins were 

partners).41 Taxpayers argue that the IRS and the TMPs did not intend other 

partnerships to be bound by Agri-Cal,42 although there was a stipulation that 

CDV (in which the Hollands were partners) and ES85 (in which the Binghams 

were partners) would be so bound. On August 28, 2000, the Tax Court 

concluded:

None of the partnerships has sustained the affirmative defense of 

statute of limitations; the FPAA’s issued to AVA and TFV for the 

1984 and 1985 taxable years are valid. The FPAA’s issued to AVF, 

DV–85, and HFA–II for the 1985 taxable year are valid.43

The Tax Court found the assessments valid for the 1984 year because 

the AVA partnership never filed a valid return (it was signed by Joseph Voyer, 

not a partner), so the statute of limitations never began to run.44 The Tax Court 

 

jurisdiction under 7422(h) – a settlement agreement did not convert the statute of limitations 

claim into a partner-level item. 389 F.3d at 159.

41 Agri-Cal Venture Associates v. C.I.R., WL 1211147, n.1 (T.C. 2000).

42 Taxpayers argue that the stipulations only bound the TMPs of CDV and ES85, not the 

other partners. 43 Agri-Cal Venture, 2000 WL 1211147, at *23.

44 Id. at *8–10, *11.

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found the assessments valid for the 1985 year, because the Forms 872 

sufficiently extended the three-year statute of limitations.45 

After the Agri-Cal decision, the IRS and TMPs engaged in negotiations 

in an attempt to settle all the AMCOR suits.46 The agreements were entered 

on July 19, 2001, and included the following: “That the assessment of any 

deficiencies in income tax that are attributable to the adjustments to 

partnership items for the years 1984 and 1985 are not barred by the provisions 

of I.R.C. § 6229” (the statute of limitations extension provision).

Around the same time as the Agri-Cal litigation and the post-Agri-Cal 

negotiations, Taxpayers filed claims with the IRS in an attempt to be refunded

what they paid to the IRS after their settlements.47 Among other arguments, 

Taxpayers asserted the assessments were invalid because the IRS assessed 

after the statute of limitations had run. Taxpayers did not assert, however, 

that the IRS failed to issue required notices of deficiency. In 2001, the IRS 

denied the refund claims of the Rodgers, Steins and Binghams, finding the 

claims “precluded under I.R.C. 7422(h).” The IRS did not act on the claim filed 

by the Hollands, in the form of an amended tax return.48 

 45 Id. at *15.

46 An affidavit of Mr. Frederick Behrens states that the “IRS filed a Motion for Entry of 

Decisions Pursuant to Rule 248(b) reflecting [the TMPs] understanding and intent that . . . 

our ‘contingent agreement’ and the resulting agreed decisions would be binding only on those 

partners ‘who meet the interest requirements of I.R.C. § 6226(d)’ and only as to partnership 

items.” 

47 The Hollands attempted to file a refund claim on December 30, 1999 by submitting an 

amended return signed by their attorney.

48 The parties dispute the validity of the Hollands’ claim. The government argues that 

“[t]he IRS never acted on the purported refund claim filed by the Hollands, but that is because 

the Hollands never filed a valid claim.” Their amended tax return for 1985 was signed by 

their attorney, not the Hollands themselves. The IRS argues that “[t]he return was thus not 

valid, because an agent may sign a return on behalf of a taxpayer only in very narrow

circumstances not present here,” and because the power of attorney did not grant the

Hollands’ attorney the authority to file the return. The Hollands counter that their return 

was properly filed. The dispute does not impact the outcome of this suit, since even assuming 

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Taxpayers subsequently brought a refund action in two federal district 

courts,49 the Rodgerses, Steins, and Hollands in a consolidated action in the 

Southern District of Texas and the Binghams in the Eastern District of Texas. 

In both cases, the parties filed cross-motions for summary judgment, and both 

district courts granted summary judgment for the Government. In Bingham, 

the district court held that § 7422(h) deprived it of jurisdiction, because the 

Binghams’ claim that the assessments were time-barred was a claim for a 

refund attributable to a partnership item under § 6229. The Rodgers court 

similarly held that it lacked jurisdiction under § 7422(h) to consider plaintiffs’ 

§ 6229 limitations period because § 6229 is a partnership item. Both courts 

relied heavily on Irvine v. United States. 

Taxpayers also argued in both district courts that the IRS was required 

to issue notices of deficiency before making the assessments at issue. Both 

district courts rejected this claim, albeit for different reasons. In Bingham, the 

district court rejected Taxpayers’ notice of deficiency claim, finding it barred 

by the “variance doctrine,” because Taxpayers failed to assert this argument

in their initial refund suit. The district court in Rodgers rejected taxpayers’ 

argument “on the merits” because “Section 6501(a) operates in conjunction 

with Section 6229(a), and Section 6229(a) is a ‘partnership item.’” Taxpayers 

appealed, and this Court entered an order consolidating the two cases. 

III. Standard of Review

This Court reviews both a district court’s grant of summary judgment 

and its determination of subject matter jurisdiction de novo.50 “Summary 

 

the Hollands properly filed their return, they face the same jurisdictional bars as the other 

Taxpayers.

49 After the suits were administratively closed without prejudice, Taxpayers in 2014 

moved to consolidate the suits filed by the Rodgerses, Steins, and Hollands and to reopen 

both the consolidated proceeding and Bingham. The district courts granted the motions.

50 Irvine, 729 F.3d at 460.

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judgment is appropriate when ‘there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.’”51 

IV. Discussion

At the heart of both of Taxpayers’ claims is a question of jurisdiction. 

This Court has explained, “[i]n a partner-level refund action,” such as this one, 

“courts do not have jurisdiction over partnership items.”52

A. Statute of Limitations Claim

Because § 7422(h) deprives the courts of jurisdiction to consider a 

partner’s claim for refund attributable to a partnership item, and because 

Taxpayers’ statute of limitations claim is attributable to a partnership item, 

the district courts lack jurisdiction to hear this claim. 

Section 7422(h) states: “No action may be brought for a refund 

attributable to partnership items . . .”53 This means “[i]f the refund is 

attributable to partnership items, section 7422(h) applies and deprives the 

court of jurisdiction. If . . . the refund is attributable to nonpartnership items, 

then section 7422(h) is irrelevant, and the general grant of jurisdiction is 

effective.”54 The § 6229 assessment period, at issue in Taxpayers’ statute of 

limitations claim, is a partnership item.55 Section 6229 can extend § 6501’s 

general three-year statute of limitations for tax assessments, “such as when 

 51 Id. (quoting Fed. R. Civ. P. 56(a)).

52 Duffie, 600 F.3d at 366 (citing 26 U.S.C. § 7422(h)) (emphasis added).

53 The entire provision reads: “No action may be brought for a refund attributable to 

partnership items (as defined in section 6231(a)(3)) except as provided in section 6228(b) or 

section 6230(c).” Taxpayers have not argued that the two exceptions in the text of § 7422(h) 

are relevant to this case.

54 Irvine, 729 F.3d at 461 (quoting Alexander v. United States, 44 F.3d 328, 331 (5th Cir. 

1995)).

55 Irvine, 729 F.3d at 461 (“In Weiner, this court held that the § 6229 assessment period 

is a partnership item that cannot be raised in partner-level litigation.” (citing Weiner, 389 

F.3d at 157–58) (other citation omitted)).

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the TMP enters into an agreement with the IRS to extend the period, 

fraudulent returns are filed, or the partnership fails to file a return.”56

Taxpayers advance a multitude of reasons that the IRS’s assessments of 

the taxes at issue were untimely and the district courts have jurisdiction to 

hear their refund claims. Taxpayers contend that they in fact prevailed on the 

limitations issue in the proceedings below such that refund jurisdiction is not 

barred, that the IRS failed to identify a valid partnership-level extension, that 

their case is distinguishable from Irvine, and that the district courts’ 

interpretation of Irvine directly conflicts with our earlier decisions in CurrSpec Partners, L.P. v. Commissioner of Internal Revenue and Duffie v. United 

States. The IRS responds that Irvine compels the outcome that the district 

courts lacked subject matter jurisdiction over the limitations claim, that Irvine 

is consistent with precedent and cannot be distinguished, and that Taxpayers 

did not prevail on the limitations issue in the proceedings below.

Both district courts concluded that the statute of limitations claim 

cannot be determined without reference to the government’s asserted bases for 

extensions under § 6229. Since § 6229 is a partnership item, they held that 

§ 7422(h) deprives the courts of jurisdiction to consider Taxpayers’ limitations 

claim. We agree. 

This outcome is compelled by Irvine.57 Like Taxpayers here, the Irvine 

plaintiffs “were partners in AMCOR limited partnerships in the 1980s”58 who 

asserted that they were improperly “assessed by the IRS after the 26 U.S.C. 

§ 6501(a) statute of limitations had passed.”59 They maintained “that 26 U.S.C. 

 56 Irvine, 729 F.3d at 461 (internal citations omitted).

57 729 F.3d 455.

58 Id. at 458.

59 Id. at 460. After FPAAs were issued in the case, other partners filed suits in the Tax 

Court contesting them, “including claiming that the FPAAs were untimely.” Id. at 458. While 

the Tax Court suits were pending and before the partnership-level settlements, the Irvine 

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§ 7422(h) [did] not bar jurisdiction because the § 6501(a) statute of limitations 

is a nonpartnership item based on the specific facts of each partner’s 

situation.”60 

The Irvine Court identified the dispositive question as “whether the 

[plaintiffs’] claim that the additional tax assessments were time-barred is a 

claim for a refund attributable to partnership or nonpartnership items.”61 It 

noted the “significant interplay between § 6501(a) and § 6229(a), a separate 

provision that can extend the § 6501(a) period for partnership items.”62 The 

Irvine Court pointed to Weiner v. United States and Federal Circuit cases and 

reaffirmed the principle “that where the government asserts § 6229 as a basis 

to extend the § 6501(a) statute of limitations, the claim for refund is 

‘attributable to’ a partnership item and § 7422(h) bars consideration of the 

limitations claim.”63 The Irvine Court explained that the government asserted 

§ 6229 extensions based on agreement by the TMP and no valid partnership 

return being filed, but that in any event a refund court may not litigate or relitigate the merits of extensions because they are partnership items.64 The 

Irvine plaintiffs “were required to raise the statute of limitations issue in the 

partnership-level proceeding prior to settlement and [were] barred from 

 

plaintiffs settled with the IRS. Id. After settlement, the IRS assessed additional taxes, which 

each plaintiff paid before filing administrative claims for refunds in 2002 and 2003. See id.

at 458–59. Meanwhile, “the Tax Court issued a decision determining that each FPAA issued 

to the partnerships was timely pursuant to 26 U.S.C. § 6229.” Id. at 458.

60 Id. at 460.

61 Id. at 461.

62 Id. (citing Curr–Spec, 579 F.3d at 396).

63 Id. at 461–62 (citations omitted).

64 Id. at 462 (further explaining that “[w]here a § 6229 basis for an extension is asserted, 

questions about whether the partnerships’ returns were fraudulent, contained substantial 

omissions, were never filed, or were subject to any extension agreements are matters to be 

determined at the partnership level under TEFRA’s statutory scheme.”).

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raising it in the refund action.”65 Irvine accordingly held that “the district court 

lacked jurisdiction over the statute of limitations claim under § 7422(h).”66

The same claims compel the same result. Here, Taxpayers maintain,

“[t]he IRS did not assess within the Taxpayers’ § 6501(a) three-year deadlines 

[and] [i]t did not assess within the § 6229(a) three year periods after the 

Partnerships filed their returns.” But, like in Irvine, the IRS asserted § 6229 

extensions—that the AVA partnership return was invalid for not being signed 

by a partner, and that the TMPs for the other partnerships agreed to 

extensions. Because “the government assert[ed] § 6229 as a basis to extend the 

§ 6501(a) statute of limitations, the claim for refund is ‘attributable to’ a 

partnership item and § 7422(h) bars consideration of the limitations claim.”67

Taxpayers vigorously dispute the validity of the IRS’s asserted bases 

for extension. For example, they assert that the TMP extensions were invalid 

because they were not signed by the actual TMP at the time, and that 

Taxpayers could not participate in the Tax Court lawsuits challenging the 

FPAAs because the version of § 6226(d)(2) in effect at the time barred them 

from doing so. Although Taxpayers were not directly involved in the Tax 

Court suits, the government asserted § 6229 extensions to the statutes of 

limitations of their partnership items. We acknowledge Taxpayers’ argument 

that they were barred from participating in the partnership proceedings,68

and that the TMP-extensions were invalid, but Irvine controls: “a refund 

court litigating or re-litigating a partnership item, such as the merits of the 

asserted § 6229 basis for an extension of the limitations period, is exactly the 

 65 Id. (citation omitted).

66 Id. 

67 Irvine, 729 F.3d at 461–62.

68 Despite the Rodgers court statement that Taxpayers “were engaged with the IRS in 

partnership-level proceedings to which Section 6229’s extension applied.”

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result prohibited by TEFRA.”69 Thus, although some of the underlying 

partnership-level facts are disputed, they are not material.

B. Notice of Deficiency Claim

Taxpayers also argue the IRS assessments are invalid because the IRS 

failed to issue deficiency notices as required by § 6213(a) and 

§ 6230(a)(2)(A)(i).70 However, this claim would require that we adjudicate 

partnership items, which § 7422(h) bars us from doing. Alternatively, under 

the variance doctrine, Taxpayers’ failure to raise the argument in their refund 

claims before the IRS prohibits them from raising it in these refund courts. 

Finally, even if we could reach the merits of Taxpayers’ argument, it would 

fail.

Section 6213(a) describes the general procedures for taxpayers who wish 

to challenge a deficiency by petitioning the Tax Court. Section 6230(a) provides 

that generally deficiency notices are not required for computational 

adjustments, but § 6230(a)(2)(A)(i) creates an exception and requires deficiency 

notices for deficiencies attributable to “affected items which require partner 

level determinations.”71 Taxpayers argue they fall within this exception, 

because, first, their purported deficiencies were attributable to the violation of 

their assessment deadlines, which are affected items under § 6231(a)(5). And 

second, these affected items required partner-level determinations because “to 

 69 Irvine, 729 F.3d at 462 (citing Weiner, 389 F.3d at 158.). Our rule of orderliness requires 

we follow Irvine. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

70 Taxpayers claim that if they had received notices of deficiencies, they could have 

challenged the deficiencies in partner-level Tax Court proceedings.

71 Courts sometimes categorize affected items under this provision as either “substantive 

affected items,” which are those that require partner-level determinations, and 

“computational affected items,” which are those that do not. See Irvine, 729 F.3d at 464 (“A 

computational adjustment to an individual partner’s tax liability can be made at the 

conclusion of the partnership level proceeding ‘without any factual determination at the 

partner level.’ A substantive affected item, however, requires ‘fact-finding particular to the 

individual partner’ before any adjustment to tax liability can be made.” (citations omitted)).

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validly assess, the IRS was required to identify partner-level exceptions to 

their § 6501(a) three-year assessment periods.” 

The IRS primarily takes issue with Taxpayers’ analysis because 

§ 7442(h) “precludes consideration of [their] contention in these refund suits.” 

As previously noted, § 7422(h) specifically deprives refund courts of 

jurisdiction over a partner’s claim for refund attributable to “partnership

items.”72 The IRS asserts that Taxpayers’ notice of deficiency theory “would 

necessarily implicate the question whether the limitations period was, in fact, 

extended under § 6229,” which is a partnership item. That is, Taxpayers’ first 

contention that their deficiencies were attributable to violation of their 

assessment deadlines “is correct if, and only if, the assessments were untimely 

under § 6501(a),” which is inseparable from the § 6229 partnership-item 

extension. Additionally, the IRS maintains that Taxpayers’ argument that 

such affected items required partner level determinations “is correct only if the 

partnership-level extensions on which the Government relies do not apply.”

The IRS alternatively argues that Taxpayers’ deficiency claim is barred by the 

variance doctrine, and that even on the merits, Taxpayers’ deficiency notice 

claim would fail. 

The Rodgers court found Taxpayers’ deficiency argument foreclosed by 

Irvine. It explained, “[Taxpayers’] argument . . . hinges on their position that 

Section 6501 is the only relevant limitations period, and that the Court should 

ignore Section 6229. This argument is foreclosed by Irvine and numerous other 

authority.” The Bingham court held that Taxpayers were barred from making 

their notice of deficiency claim under the variance doctrine, because the 

plaintiffs did not assert such an argument as a basis for refunds when they 

filed their refund claims with the IRS. We agree with both district courts.

 72 26 U.S.C. § 7422(h) (with limited exceptions).

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Taxpayers aver deficiency notices were required based on the 

§ 6230(a)(2)(A)(i) exception to § 6230(a)’s general rule that deficiency notices 

are not required for computational adjustments.73 For the exception to apply, 

the Taxpayers’ deficiency must be attributable to “affected items which require 

partner level determinations.”74 Taxpayers insist that their deficiency was 

attributable to “the violation of their assessment deadlines,” which would fall 

under § 6501(a). 

Refund courts do not have jurisdiction to adjudicate Taxpayers’ 

contention because it assumes that the IRS did not properly extend their

assessment deadlines under § 6229. But as previously discussed, Irvine 

concluded that § 7422(h) prohibits this Court from adjudicating the merits of 

§ 6229 extensions.75 If this Court were to agree with Taxpayers that their 

deficiencies were attributable to violation of § 6501(a), we would also 

necessarily be finding that the § 6229 extensions did not apply—which would 

be a merits determination prohibited by Irvine. Accordingly, the district courts 

lack jurisdiction to consider Taxpayer’s deficiency claim.

Furthermore, contrary to Taxpayers’ claim, Irvine does not conflict with 

Curr-Spec76 and Duffie.77 In Curr-Spec, this Court held “that IRC § 6229(a) 

does not establish an independent statute of limitations for issuing FPAAs,”78

 73 26 U.S.C. § 6230(a)(2)(A)(i) (deficiency notice required for “any deficiency attributable 

to [] affected items which require partner level determinations”).

74 26 U.S.C. § 6230(a)(2)(A)(i). Section 6231(a)(5) defines affected item as “any item to 

the extent such item is affected by a partnership item.”

75 See Irvine, 729 F.3d at 462 (“However, a refund court litigating or re-litigating a 

partnership item, such as the merits of the asserted § 6229 basis for an extension of the 

limitations period, is exactly the result prohibited by TEFRA.”).

76 579 F.3d 391 (5th Cir. 2009).

77 600 F.3d 362 (5th Cir. 2010).

78 Curr-Spec, 579 F.3d at 393.

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rather it may extend the general three-year statute of limitations in 

§ 6501(a).79 Irvine accepted this understanding.

In Duffie, the parties disputed whether § 7422(h) deprived the district 

court of jurisdiction to consider “Duffies’ claim that the IRS erred in assessing 

§ 6621(c) interest against them.”80 This Court reasoned, “[t]he Duffies’ refund 

claim is attributable to the Tax Court’s determination that the Texas Farm 

Venturers activities were sham transactions . . . Because the nature of a 

partnership’s activities—whether they are sham transactions—is the 

partnership-item component of an affected item, the Duffies’ refund claim is 

based on the determination of a partnership item.”81 The Duffie Court thus 

held that § 7422(h) barred jurisdiction on that claim.82 Irvine does not conflict 

with Duffie, and in fact repeatedly referenced Duffie.

Taxpayers additionally argue that Rodgers erred, because if the 

§ 6501(a) statute of limitations is barred under § 6230(a)(2)(A)(i) for being 

linked with § 6229, a partnership item, then § 6230(a)(2)(A)(i) would be 

rendered meaningless, because “by definition, every affected item has at least 

one partnership-item component.” Although there is some merit in Taxpayers’ 

interpretation claim, it reaches too far. Section 6230(a)(2)(A)(i) still requires 

deficiency notices for non-§ 6501(a)/§ 6229 affected items which require 

partner level determinations.83 Furthermore, Taxpayers incorrectly state that 

the Rodgers court held that “§ 6230(a)(2)(A)(i) does not apply when an affected 

 79 Id. at 396; see id. at 401 (“The three-year statute of limitations of IRC § 6501(a) is the 

period within which the Commissioner may assess taxes on an individual partner (subject to 

extension) for partnership items.”).

80 Duffie, 600 F.3d at 382.

81 Id. at 383.

82 See id.

83 “For example, a taxpayer-partner’s medical expense deduction under 26 U.S.C. § 213(a) 

is an ‘affected item.’ Because a taxpayer can only deduct medical expenses to the extent those 

expenses exceed 7.5% of adjusted gross income, a change in the partnership’s income affects 

the amount of the partner’s deduction.” Duffie, 600 F.3d at 366.

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item has a partnership-item component.” Although one could read the Rodgers 

decision to suggest that § 6229(a) transforms § 6501(a) into a partnership item 

for § 6230(a)(2)(A)(i) notice deficiency purposes, this was not its holding. It 

found merely that in this case, contrary to Taxpayers’ arguments, § 6501 could 

not be separated from § 6229 given Irvine. For the reasons already stated, we 

agree.

Additionally and alternatively, Taxpayers’ deficiency argument is 

foreclosed by the variance doctrine. 26 U.S.C. § 7422(a) requires that tax 

refund claims comply with “the regulations of the Secretary established in 

pursuance thereof.” 26 C.F.R. § 301.6402-2(b)(1) provides:

The claim must set forth in detail each ground upon which a credit 

or refund is claimed and facts sufficient to apprise the 

Commissioner of the exact basis thereof . . . A claim which does not 

comply with this paragraph will not be considered for any purpose 

as a claim for refund or credit.

As this Court recently explained, “[t]his regulation codifies the variance 

doctrine.”84 This means that “[a]bsent a waiver by the Government, a taxpayer 

is barred from raising in a refund suit grounds for recovery which had not 

previously been set forth in its claim for a refund.”85

The IRS maintains that Taxpayers’ notice of deficiency claim is barred 

by the variance doctrine, as they did not raise it in their administrative refund 

claims. Taxpayers respond that their deficiency claim was fairly contained in 

 84 El Paso CGP Co. v. United States, 748 F.3d 225, 228 (5th Cir. 2014).

85 Mallette Bros. Const. Co. v. United States, 695 F.2d 145, 155 (5th Cir. 1983) (citations 

omitted); accord Angelus Milling Co. v. C.I.R., 325 U.S. 293, 297 (1945) (“Since, however, the 

tight net which the Treasury Regulations fashion is for the protection of the revenue, courts 

should not unduly help disobedient refund claimants to slip through it. The showing should 

be unmistakable that the Commissioner has in fact been fit to dispense with his formal 

requirements and to examine the merits of the claim. It is not enough that in some 

roundabout way the facts supporting the claim may have reached him.”).

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the general language of their administrative claims, citing the following 

paragraph:

The assessment of tax and interest was made after the statute of 

limitations had already expired. Any amount assessed and 

collected after the statute of limitations has expired constitutes an 

overpayment pursuant to Internal Revenue Code §6401.

Neither this paragraph nor the rest of Taxpayers’ administrative claims

“set forth in detail” Taxpayers’ notice of deficiency ground “upon which a credit 

or refund is claimed and facts sufficient to apprise the Commissioner of the 

exact basis thereof.”86 It is not enough to argue that the statute of limitations 

claim “inherently include[s]” the notice of deficiency claim. Such an 

understanding would defeat the purpose of “assur[ing] that the Commissioner 

is apprised of the exact nature of the claim and the facts upon which the claim 

is advanced so that there is an opportunity to make an administrative 

determination of the claim.”87

Taxpayers further argue that the IRS had a duty to conduct a meaningful 

investigation based on the administrative claim assertions, and had they done 

so, the IRS would have ascertained that deficiency notices were required. But 

this is not correct either. It is the Taxpayers’ duty to inform the IRS of grounds 

for recovery in their refund claim, not the other way around.88

Taxpayers also contend that the IRS waived its variance argument 

because it violated procedure and failed to conduct an investigation into 

Taxpayers’ statute of limitations grounds in their administrative claim. As an 

initial matter, “a taxpayer asserting a waiver bears an extremely heavy burden

 86 26 C.F.R. § 301.6402-2(b)(1).

87 Mallette Bros. Const. Co., 695 F.2d at 155 (citations omitted); accord id. (“The alleged 

error must be clearly and specifically set forth in the refund claim. A generalized plea of error 

will not suffice.” (citations omitted)).

88 26 C.F.R. § 301.6402-2(b)(1).

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of proving such a waiver.”89 And in any event, the IRS addressed Taxpayers’ 

statute of limitations claim:

Your claim for refund of the tax paid under the settlement 

agreement entered into with Appeals, Form 870-P(AD), concerning 

the partnership is denied. Your claim is precluded under I.R.C. 

7422(h). TEFRA requires that all challenges to adjustments of 

partnership items be made in a single, unified agency proceeding, 

at the partnership level.90

Though cursory, the IRS’s reliance on § 7422(h) demonstrates it rejected

Taxpayers’ statute of limitations argument based on § 7422(h)’s bar on refund 

suits attributable to partnership items. Given this conclusion, the IRS had no 

need to consider the merits of the claim, such as the validity of limitations 

extensions. Taxpayers argue that the IRS “applied § 7422(h) only to preclude 

Taxpayers from challenging the partnership-item adjustments they had 

agreed to in their Forms 870-P(AD),” which they did not challenge. But 

Taxpayers’ attempt to separate their statute of limitations argument from the 

adjustments to partnership items is unpersuasive, given that their statute of 

limitations claim requires partnership-level determinations, as previously 

explained.

Moreover, the exception to the variance doctrine “in cases where the 

Government’s unilateral action itself creates the substantial variance,” does 

not apply here.91 The variance arose from Taxpayers’ failure to assert a 

deficiency notice ground in its refund claim, not any later action by the IRS of 

 89 Mallette Bros. Const. Co., 695 F.2d at 156.

90 The IRS did not send a denial letter to the Hollands presumably because they submitted 

their claim for refund on an amended tax return signed by their attorney. Regardless, like 

the other three Taxpayers, the Hollands’ notice of deficiency claim would fail on the merits.

91 El Paso CGP Co., 748 F.3d at 229 (citations omitted).

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which Taxpayers could not have been aware, as was the case in El Paso CGP 

Co. v. United States.92

Finally, Taxpayers argue the IRS waived the variance doctrine 

argument for failing to brief it in its motion for summary judgment. But even 

if the variance doctrine was not jurisdictional and could thus be waived by a 

party,93 the IRS did not waive what Taxpayers failed to plead.94

In sum, because “the variance doctrine requires that the grounds for 

recovery advanced in federal court must be the same as advanced before the 

IRS,”95 and because Taxpayers’ did not advance deficiency notice grounds 

under § 6230(a)(2)(A)(i) before the IRS, their notice of deficiency claim is 

alternatively barred by the variance doctrine.

And even if it was not so barred, it would fail on the merits. Taxpayers’ 

argument that their deficiencies were attributable to a violation of their 

assessment deadline misunderstands “deficiency.” Deficiency is defined at 26 

U.S.C. § 6211(a):

“the amount by which the tax imposed by subtitle A or B, or 

chapter 41, 42, 43, or 44 exceeds the excess of –

(1)the sum of

 92 See 748 F.3d at 229.

93 El Paso CGP Co., 748 F.3d at 228 (“To assert a court’s jurisdiction over a claim for 

refund, the variance doctrine requires that the grounds for recovery advanced in federal court 

must be the same as advanced before the IRS.”) (emphasis added).

94 The Rodgers’s original complaint stated: “This is a suit arising under Sections 7422, 

6401, 6402, 6230(c), 6621(c), and 6404(e) of the Internal Revenue Code . . .” The complaint’s 

reference to § 6230(c) is insufficient to assert a deficiency notice claim under § 6230(a). The 

Bingham’s original complaint more broadly asserted: “This is a suit arising under Sections 

7422, 6401, . . . 6230, and 6621(c) of the Internal Revenue Code . . .” But even if this could be 

construed as adequately pleading the deficiency notice claim under § 6230(a), the variance 

doctrine argument was sufficiently before the district court. Keelan v. Majesco Software, Inc., 

407 F.3d 332, 339–40 (5th Cir. 2005). 95 El Paso CGP Co., 748 F.3d at 227.

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(A) the amount shown as the tax by the taxpayer upon his 

return, if a return was made by the taxpayer and an amount 

was shown as the tax by the taxpayer thereon, plus

(B) the amounts previously assessed (or collected without 

assessment) as a deficiency, over--

(2) the amount of rebates, as defined in subsection (b)(2), made.

Taxpayers argue that their deficiency was $0. But this conclusion is 

based on Taxpayers’ argument that the IRS’s assessment was untimely, which 

this court may not consider for the reasons stated earlier in this decision, and 

nevertheless contravenes the statutory definition of deficiency. Section 6211(a) 

first looks to the “tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44,” 

not the tax a taxpayer believes should have been imposed by such subtitles or 

chapters. The taxes imposed here exceeded $0.96 Accordingly, even if the courts 

could consider Taxpayers’ notice of deficiency claim, it would not be successful.

V. Conclusion

For the reasons stated above, we affirm the decisions of the district 

courts.

 96 The IRS assessed the following amounts: (1) $24,239.00 in tax and $34,016.99 in 

interest against the Rodgerses for 1985; (2) $2,031.00 in tax and $3,435.61 in interest against 

the Rodgerses for 1986; (3) $26,694.00 in tax and $47,245.69 in interest against the Steins 

for 1984; (4) $16,206.00 in tax and $28,634.21 in interest against the Hollands for 1985; and 

(5) $11,265.00 in tax and $21,676.16 in interest against the Binghams for 1985.

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