t c memo united_states tax_court terry e hornbacker and georgia r hornbacker petitioners v commissioner of internal revenue respondent docket no filed date terry e hornbacker and georgia r hornbacker pro_se michael t shelton for respondent memorandum findings_of_fact and opinion paris judge respondent issued notices of final_determination denying petitioners’ claim under sec_6404 for abatement of interest on federal income unless otherwise indicated all section references are to the internal_revenue_code as amended and in effect at all relevant times and all rule references are to the tax_court rules_of_practice and procedure tax_liabilities for and petitioners timely petitioned the court under sec_6404 and rule seeking review of respondent’s determination the issue for decision is whether respondent’s denial of petitioners’ claim_for_abatement of interest was an abuse_of_discretion findings_of_fact some of the facts have been stipulated and are so found the stipulated facts and facts drawn from the stipulated exhibits are incorporated herein by this reference petitioners resided in illinois when they filed their petition during the years in issue mr hornbacker owned public sector consulting a management consulting business that performed startup analysis problem solving mobile computing solutions and internet marketing for small independent businesses mrs hornbacker was a violinist she performed with an orchestra was a music professor and gave private violin lessons mr hornbacker worked from a home_office and mrs hornbacker gave private violin lessons from a studio in petitioners’ home the notices of determination are dated date petitioners had days from the date of the notices of determination to petition the court the deadline was date petitioners’ petition was postmarked date see sec_7502 i the audit the internal_revenue_service irs selected petitioners’ and federal_income_tax returns for audit the irs did not contact petitioners in writing about the audit before date tax compliance officer valerie goggil tco goggil was assigned petitioners’ audit her case history reports reports for and were entered into evidence tco goggil credibly testified that her schedule was normally booked days out this timeframe had to be taken into account when rescheduling meetings or scheduling additional meetings with taxpayers it appears from the record that the audits of both returns occurred concurrently petitioners’ return is stamped sc no aug sic selected for exam petitioners’ return is stamped sc no aug sic selected for exam there is no explanation in the record for the one year between the selection of petitioners’ returns for audit and the concurrent audits of the returns at the top of the reports tax compliance officer sandra theilken tco theilken is identified as the examining officer tco goggil testified that she created the reports and that when tco theilken opened the reports for the audit_reconsideration tco theilken’s name was automatically inserted as the examining officer the irs no longer uses this procedure because on its server an audit_reconsideration is opened as a new case tco goggil’s first meeting with petitioners was on date petitioners had a worksheet that they offered as substantiation for the expenses underlying their claimed deductions but provided very little third-party documentation of their reported expenses at that meeting petitioners and tco goggil met again on date petitioners brought some documentation of expenses with them to the second meeting with tco goggil but still did not have much third-party documentation to substantiate their reported expenses petitioners and tco goggil met a third time on date petitioners did not bring any additional substantiation to that meeting on date on the basis of the third-party documentation that petitioners had provided tco goggil mailed form_4549 income_tax examination changes to petitioners proposing adjustments to their and returns by letter dated date petitioners responded to each of the explanations of items from the form_4549 by this time tco goggil had also the report notes for november through date are entered on date with the note somehow notes entered from to were deleted from history obtained time report from secretary added here to have time balance mr hornbacker brought his laptop with him to the meeting because he claimed his substantiation was saved there tco goggil informed him that she needed hard copies of the substantiation been assigned a complicated fraud case concerning another taxpayer that involved years of federal_income_tax returns the case was complicated and was designated a priority on date tco goggil mailed revised proposed adjustments to petitioners that took into account new documentation petitioners had provided with their date letter petitioners did not agree with tco goggil’s revised proposed adjustments therefore on date tco goggil closed petitioners’ audit because the parties could not agree on the adjustments and the file was sent to her manager for review on date tco goggil received petitioners’ file from her manager with instructions to not allow the additional expenses and to meet with petitioners to review the proposed adjustments on date tco goggil reviewed petitioners’ file and on date she again met with petitioners at that meeting petitioners produced more documentation to substantiate their reported expenses petitioners and tco goggil scheduled an additional meeting because mrs hornbacker had to leave the date meeting early to go to work on date tco goggil met with petitioners for the final time at that meeting petitioners refused to sign form_872 consent to extend the time to assess tax for the years in issue on december and tco goggil again revised her proposed adjustments and then mailed to petitioners her final proposed adjustments after receiving the final proposed adjustments petitioners contacted the taxpayer_advocate_service tas on date tco goggil received a letter from tas on petitioners’ behalf requesting a correction to the final revised 30-day_letter because of alleged math errors tco goggil did not make any corrections to her final proposed adjustments noting in the report that any math errors were minor that petitioners would not sign form_872 and that she had been lenient during the audit by allowing petitioners expenses for which they had no third-party substantiation tco goggil closed the audit and gave her audit file to her manager her manager then forwarded the audit file to technical services for preparation and issuance of a notice_of_deficiency on date respondent mailed a notice_of_deficiency for and to petitioners’ last_known_address the notice_of_deficiency was issued before the expiration of the periods of limitations for both tax years in issue the purpose of form_872 is often to give the irs more time to determine the correct_tax liability before the irs must finalize its determination or lose the ability to collect any_tax see abumayyaleh v commissioner tcmemo_2010_275 slip op pincite petitioners did not petition this court on the notice_of_deficiency on date the irs assessed the taxes penalties and interest determined in the notice_of_deficiency ii the audit_reconsideration on date petitioners contacted tas by phone tas mailed petitioners a letter dated date memorializing that phone conversation in the letter tas confirmed that the irs had mailed petitioners a notice_of_deficiency to their address on record and expressed regret that they were not available to sign for the certified letter and that it was returned to the irs by the post office petitioners responded to tas by letter dated date which states this corrected final report was finally delivered to us around september 30th sic they also included additional information to dispute the final numbers in the corrected final report approximately one month after petitioners’ letter to tas respondent proposed a collection action against petitioners they received notices cp dated date for and informing them that the irs although it is not entirely clear from the record it appears that the corrected final report is the form 4549-a income_tax discrepancy adjustments and accompanying documentation that was included with the notice_of_deficiency intended to levy certain assets because petitioners had not paid their and federal_income_tax liabilities they then received letter final notice_of_intent_to_levy and notice of your right to a hearing dated date for and mrs hornbacker acknowledged on cross-examination that petitioners received the final notice_of_intent_to_levy petitioners did not request a collection_due_process_hearing nor did they respond otherwise to any of the notices on date tas prepared an operations assistance request oar requesting an audit_reconsideration for petitioners’ tax years and on date a tas-irs liaison received the oar and on date forwarded it to the irs on date the irs planning and special programs office processed the oar and forwarded it to a field_examination group for audit_reconsideration on date petitioners’ audit_reconsideration was assigned to tco theilken the case was not mailed to tco theilken until date because she was on approved leave during the week of date on july and tco theilken reviewed petitioners’ audit file and agreed with the original audit results she called petitioners and informed mr hornbacker of her determination and he asked to speak with her manager tco theilken’s manager called mr hornbacker and told mr hornbacker that he agreed with tco theilken’s determination respondent mailed petitioners a letter dated date explaining the outcome of the audit_reconsideration iii appeals petitioners submitted a protest letter dated date requesting an appeal of their audit_reconsideration determination petitioners attached to the protest letter more substantiation for the expenses underlying their claimed deductions for and on date tco theilken or her manager reviewed petitioners’ protest letter and on date petitioners’ audit file was forwarded to the irs office of appeals in chicago appeals appeals mailed petitioners a letter dated date which acknowledged receipt of their case on date and explained what appeals does the letter informed petitioners that if they wish to stop or reduce interest on part or all of the proposed balance due you can make payments towards the tax at the address listed above appeals officer sander ao sander mailed petitioners a letter dated date informing them that she had been assigned to their case and explaining the appeals process on february petitioners faxed additional substantiation about individual_retirement_account distributions for and ao sander then mailed petitioners a letter dated date scheduling a conference with them for date on march and petitioners faxed ao sander form_5498 ira contribution information and form_1098 mortgage interest statement respectively the information on form_5498 is handwritten and the box next to corrected is marked ao sander mailed petitioners a letter dated date informing petitioners that she was allowing your claim in part but that they had not fully met their burden for all of their reported expenses on date ao sander faxed to mr hornbacker a form_4549 that shows an overpayment of dollar_figure for petitioners disagreed with ao sander’s determinations and on june june and date faxed her additional explanations for their claimed expenses ao sander mailed petitioners a letter dated date sustaining the examiner’s determination and allowing an additional deduction for schedule c the first stipulation of facts signed by the parties states ao sander faxed to petitioners a copy of her revised tax computations a copy of the computations is attached as exhibit 26-j exhibit 26-j includes a form_4549 for only business_expenses as shown on the enclosed report petitioners again disagreed with ao sander’s determination and mr hornbacker twice faxed her additional information on date ao sander completed form_5402 appeals transmittal and case memo dated date determining that petitioners were allowed additional deductions claimed on schedule c profit or loss from business and reducing petitioners’ federal_income_tax liabilities by dollar_figure and dollar_figure for and respectively appeals also created a final schedule of adjustments on date adjusting the original assessments reflected on form 4549-a from dollar_figure to dollar_figure for and dollar_figure to dollar_figure for petitioners’ sec_6662 accuracy-related_penalties were abated in full iv petitioners’ offers-in-compromise oics petitioners’ filed separate forms 656-l offer_in_compromise doubt as to liability for and dated date they offered dollar_figure and dollar_figure as compromises for their and federal_income_tax liabilities respectively and remitted these amounts with their oics exhibit 30-j includes only the cover letter referencing the report respondent objected to any evidence about petitioners’ oics being entered into evidence on the grounds of relevancy the court finds that a discussion of the oics is warranted therefore respondent’s objection is overruled a petitioners’ oic petitioners received a letter dated date informing them that the irs had closed the file on their offer for their tax_liability because the irs did not have jurisdiction to process the offer based on the following we cannot consider your offer based on doubt as to liability sic because you raise no issue regarding the accuracy of your tax_liability the letter also informed petitioners that they would receive a refund of dollar_figure in to weeks along with the letter the irs returned the form 656-l with the received stamp crossed out and the word return stamped in capital letters at the top of the first page b petitioners’ oic respondent received petitioners’ oic on date which included additional documentation on date respondent abated tax of dollar_figure and reduced or removed late payment interest of dollar_figure for petitioners then received a letter dated date informing them that their offer for their tax_liability was rejected because w e have partially abated the original tax_assessment there is no longer a basis for the offer_in_compromise the letter also informs petitioners of their right to appeal the rejection within days of the date of the letter petitioners did not appeal the rejection nor did they submit a new oic after the date abatement of tax while the letter makes no mention of what was done with the check for dollar_figure petitioners mailed to the irs with their oic for at trial respondent stated that it was standard practice for the check to be cashed when received and placed in a account so that the check would not expire and be rejected by the bank during the pendency of the oic the funds are treated as a deposit towards the oic not a payment petitioners did receive a u s treasury check for dollar_figure dated date as of the time of trial petitioners had not negotiated the checkdollar_figure v petitioners’ request for interest abatement petitioners sent the irs form_843 claim_for_refund and request for abatement dated date the form_843 was for and requested that dollar_figure be abated the form_843 instructions direct taxpayers to prepare a separate form_843 for each tax period there is no form_843 in the record for but in their explanation attached to the form_843 petitioners state this request is in regard to income_tax for and they also request an abatement of all interest assessed from date sic to the present respondent stated that a account is essentially a clearing house account there was no testimony about the date of the refund of the dollar_figure submitted with the oic petitioners marked the box for interest was assessed as a result of irs errors or delays petitioners also stated that there was a sec_6662 accuracy- related penalty in issue and marked the box that reasonable_cause can be shown for not assessing the penalty the section of form_843 for the date s of payment s is blank the received stamp on the form_843 is dated date respondent mailed petitioners separate notices of determination disallowing their requests for abatement of interest for and each dated date opinion on form_843 petitioners requested an abatement of interest from date to the present in their petition petitioners ask the court to waive all interest and penalties made in this case the parties stipulated that respondent did not contact petitioners in writing about the audit of their tax returns before date because the commissioner may abate interest only for s ection confers no ‘stand alone’ jurisdiction of the tax_court to review the commissioner’s determinations to abate penalties see sec_6404 138_tc_295 even if the court had jurisdiction over the penalties here the irs had abated them in full in date well before the petition was filed in this case therefore the court’s opinion will only address petitioners’ request for an abatement of interest managerial and ministerial acts performed after the irs contacts the taxpayer in writing the court will review only petitioners’ request for interest abatement for managerial and ministerial acts performed after date see sec_6404 sec_301_6404-2 proced admin regs i abatement of interest generally for tax years beginning after date the commissioner is permitted to abate interest on any deficiency in tax attributable in whole or in part to any unreasonable error or delay by an irs officer_or_employee in performing a managerial or ministerial_act 112_tc_19 an error or delay shall be taken into account only if no significant aspect of the error or delay can be attributed to the taxpayer involved and the error or delay occurs after the irs has contacted the taxpayer in writing with respect to the deficiency or payment sec_6404 a managerial act is an administrative act that occurs during the processing of a taxpayer’s case and that involves the temporary or permanent loss of records or the exercise of judgment or discretion relating to personnel management sec_301_6404-2 proced admin regs a ministerial_act is a procedural or mechanical act that does not involve the exercise of judgment or discretion and occurs during the processing of a taxpayer’s case after all the prerequisites to the act such as conferences and review by supervisors have taken place see 113_tc_145 sec_301_6404-2 proced admin regs in contrast a decision concerning the proper application of federal tax law or other applicable federal or state law is not a managerial or ministerial_act sec_301_6404-2 and proced admin regs the mere passage of time does not establish error or delay in performing a managerial or ministerial_act see lee v commissioner t c pincite ibrahim v commissioner tcmemo_2011_215 citing lee v commissioner t c pincite sec_6404 is not intended to be routinely used to avoid payment of interest rather congress intended that interest be abated where failure to abate interest would be widely perceived as grossly unfair h_r rept no pincite c b vol s rept no pincite 1986_3_cb_1 to qualify for abatement of interest under sec_6404 the taxpayer must identify an unreasonable error or delay by the irs in performing a ministerial or managerial act establish a correlation between the error or delay by the irs and a specific period for which interest should be abated and show that the taxpayer would have paid his or her tax_liability earlier but for such error or delay sec_6404 ibrahim v commissioner tcmemo_2011_215 slip op pincite braun v commissioner tcmemo_2005_221 slip op pincite sec_301_6404-2 proced admin regs see also 112_tc_230 the court may order an abatement when the commissioner abused his discretion in failing to abate interest sec_6404 the taxpayer must prove that the commissioner exercised his discretion arbitrarily capriciously or without sound basis in fact or law lee v commissioner t c pincite woodral v commissioner t c pincite ii petitioners’ actions and argument a statutory requirements petitioners must meet the court will examine each of the separate requirements petitioners must meet identify irs error or delay in performing a managerial or ministerial_act the regulations give several examples of managerial and ministerial errors or delays ranging from the managerial act of not reassigning an auditor’s cases after the auditor is permanently reassigned to another group to the ministerial_act of transferring a file see sec_301_6404-2 proced admin regs petitioners alleged no specific irs error or delay in performing a managerial or ministerial_act their main argument was that at multiple levels of the audit the federal tax laws were improperly applied because by their final appeals_conference several of their claimed deductions that tco goggil disallowed during the initial audit were allowed the improper application of federal tax law during the course of petitioners’ audit is not a managerial or ministerial_act see id para b and petitioners also allege that the irs lost and admitted it had lost their file for at least two months during the audit they provided no evidence to corroborate their allegation the court need not accept petitioners’ self-serving testimony when they fail to present corroborative evidence see 87_tc_74 there is no documentation in any of the reports in the record of their file being lost the only indication of any lost documentation is a note in the reports stating that some of tco goggil’s notes had been deleted and needed to be reentered for timekeeping purposes in fact the reports show adequate response times by the irs throughout petitioners’ audit tco goggil’s schedule was full for days which meant when petitioners required subsequent meetings they could not be immediately rescheduled during petitioners’ audit tcos goggil had also been assigned a fraud case that took priority over her other cases the prioritizing of work and caseloads is not a managerial or ministerial_act bartelma v commissioner tcmemo_2005_64 jacobs v commissioner tcmemo_2000_123 this is more akin to a general administrative decision see sec_301_6404-2 examples and proced admin regs tco theilken’s and ao sander’s case file notes also show that they timely worked on and processed petitioners’ file additionally the fact that petitioners provided additional third-party substantiation at almost every meeting throughout the audit and audit_reconsideration instead of substantiating their claimed deductions at the beginning of the audit meant that the tcos and the ao working on petitioners’ file had to continually review more documentation after almost every meeting establish a correlation between the error or delay by the irs and a specific period for which interest should be abated on form_843 petitioners requested an abatement of interest from date to the present then in their petition they requested a waiver of all interest and penalties made in this case petitioners make no correlation between any irs errors or delays in performing managerial or ministerial acts and a specific period for which interest should be abated this court has held that a as noted supra respondent did not contact petitioners in writing about their audit before date request for an abatement of all interest is a request to be exempt from interest as opposed to an abatement of interest for a specific period see braun v commissioner slip op pincite donovan v commissioner tcmemo_2000_220 slip op pincite congress did not intend the statute to be used routinely to avoid payment of interest see h_r rept no supra pincite c b vol pincite s rept no supra pincite c b vol pincite show that the taxpayer would have paid his or her tax_liability earlier but for such error or delay petitioners repeatedly testified that they would have paid their liability promptly if the irs had calculated it correctly the first time while the court does not doubt petitioners’ intentions to dutifully pay their fair share of taxes their actions throughout the audit belie their words at every meeting with tco goggil and with appeals petitioners continued to provide additional substantiation for their reported expenses had they presented all of the necessary substantiation at the first and perhaps second meetings with tco goggil the audit would not have taken as long as it did additionally the notice_of_deficiency for and was issued in a timely manner on date well within the periods of limitations for both years b petitioners’ oics petitioners submitted oics for and on date for dollar_figure and dollar_figure respectively the irs rejected both oics petitioners’ oic was rejected within three weeks on date and dollar_figure was refunded to them petitioners’ oic was rejected on date and dollar_figure was refunded to them petitioners argue that interest should be abated for the period from the date they filed their oics to the date the irs refunded the amounts they sent with the offers because respondent cashed petitioners’ checks and because of the amount of time respondent took to reject the oic unless otherwise specified by the taxpayer amounts submitted with an oic are considered deposits they are not payments of the liability which would stop the accumulation of interest on the underlying liability to the extent of the payment goettee v commissioner tcmemo_2003_43 citing 323_us_658 and 35_tc_1130 aff’d 192_fedappx_212 4th cir sec_301_7122-1 proced admin regs petitioners did not assert that the amounts submitted with their oics were to be applied to the liabilities if their offers were rejected therefore the amounts submitted with their oics were deposits supporting their offers and respondent did not have unrestricted use of the money see goettee v commissioner tcmemo_2003_43 as stated supra the mere passage of time does not create a claim for an abatement of interest see lee v commissioner t c pincite although the irs rejected petitioners’ oic in a matter of days but did not reject petitioners oic for seven months there was no unreasonable error or delay caused by a managerial or ministerial_act respondent acted on the basis of additional documentation petitioners included with the oic and abated previously assessed tax and reduced or removed late payment interest before the date he denied the oic the record does not reflect that respondent deviated from standard irs procedures in processing petitioners’ oics see chakoian v commissioner tcmemo_2009_151 citing braun v commissioner t c memo indeed the irs has up to months to process an oic see sec_7122 paneque v commissioner tcmemo_2013_48 at n iii conclusion petitioners have failed to prove that any managerial or ministerial_act by the irs caused an unreasonable error or delay during the audit of their and federal_income_tax returns they have failed to connect any error or delay to a specific period instead requesting to be exempt from interest from the time they filed their return until they filed form_843 and they have failed to prove that they would have paid their tax_liabilities sooner except for the irs’ error or delay additionally petitioners have failed to prove that any managerial or ministerial_act resulted in an unreasonable error or delay in the irs’ processing of their and oics respondent did not abuse his discretion when he denied petitioners’ request for an abatement of interest for and the court has considered all of the arguments made by the parties and to the extent they are not addressed herein they are considered unnecessary moot irrelevant or without merit to reflect the foregoing decision will be entered for respondent


id office uilc cca_2008121615414653 ---------- number release date from -------------------- sent tuesday date pm to ------------------------- cc subject sale of computers with customer information this responds to your request for advice on several issues pertaining to the proposed seizure and sale of the assets of a security alarm company your request for advice centers on the proposed seizure and sale of the company's computers and asks whether the irs can sell the computers without removing the client information on them and whether such a sale can be a considered one of perishable goods pursuant to sec_6336 i coordinated ------------------------------------------in formulating our response to your request for advice as the request presented disclosure and privacy issues outside our purview i concur with their opinion that because the alarm company's computers contain sec_6103 protected taxpayer information which includes private client information the irs cannot sell the computers with the client information on them this opinion is supported by irm which indicates that information on computers seized by the irs should not be sold requiring the irs to wipe clean all computers before selling them this opinion is also suggested by irm which although not strictly applicable since it is limited in scope to records of attorneys physicians and accountants addresses situations analogous to that presented here and suggests that where private information is on a seized computer it should not be sold as an asset of the taxpayer because the alarm company's computers cannot be sold with confidential taxpayer information on them it is unnecessary for us to address whether the seizure and sale of the company's computer information qualifies as one of perishable goods i also coordinated with the ---------------------------------in considering your questions -------addressed whether the irs can resell software on computers that have been seized essentially --------- opinion is that the irs's right to resell computer_software depends on the terms of the license that the taxpayer acquired in the software this assumes that the software has been wiped clean of any sec_6103 taxpayer information accordingly the transferability of the software must be determined on a case-by- case basis following consultation with local area_counsel please let me know if we can assist you further ------------------------------------------------------ ------------------------------------------------------ ----------


department of the treasury internacrevenve service washington b c feb seti ep rife th uil no legend taxpayer a individual ira x iray iraz account a company r company s company t financial advisor c individual d amount a amount b amount c date page of date ‘ dear this is in response to your letter dated date supplemented by correspondence dated date submitted on your behalf by your authorized representative in which you request a waiver of the 60-day rollover requirement contained in sec_408 of the intemal revenue cade the code ot the following facts and representations have been submitted under penalty of perjury in support of the ruling requested taxpayer a age represents that she received distributions of amount a from ira x amount b from ira y and amount c from ira z taxpayera asserts that her failure to accomplish timely rollovers within the 60-day period prescribed by sec_408 of the code was due to errors committed by her financial advisor and her medical_condition which impaired her ability to accomplish timely rollover of amounts a b and c ‘ ' ‘taxpayer a represents that she was not aware that individual b's annuities were iras taxpayer a further represents that on date she met with financial advisor c and his client associate individual d who advised her to liquidate the annuities held by company r financial advisor c and individual d did not advise taxpayer a that the annuities were iras or that she had options other than liquidation in addition the forms that taxpayer a completed did not contain any statement that the annuities were iras taxpayer a received amounts a and b in connection with the liquidation of ras x and y and deposited these amounts into account a a non-ira account with company t ‘taxpayer a represents that shortly before date she again met with financial advisor c and individual d who advised her to liquidate the annuity held by company s financial advisor c and individual d assisted taxpayer a in completing the appropriate forms to request liquidation of ira z however financial advisor c and individual d did not advise taxpayer a that the annuity was an ira or that she had options other than liquidation tn addition the forms that taxpayer a completed did not contain any statement that the annuity was an ira on date taxpayer a received amount c in connection with the liquidation of ira zand deposited this amount into account a taxpayer a also represents that during the 60-day periods following the distributions she suffered from a medical_condition that affected her memory and diminished her mental capacity thus she relied on financial advisor c and individual d to provide her with appropriate advice and assistance page of 200919c69 based on the facts and representations you request a ruling that the internal_revenue_service the service waive the 60-day rollover requirement contained in sec_408 of the code with respect to the distributions of amounts a b and c from iras x y and z respectively sec_408 of the code provides that except as otherwise provided in sec_408 any amount_paid or distributed out of an ira shall be included in gross_income by the payee or distributee as the case may be in the manner provided under sec_72 of the code sec_408 dx3 of the code defines and provides the rules applicable to jra rollovers sec_408 3xa of the code provides that sec_408 of the code does not apply to ary amount_paid or distributed out of an ira individual for whose benefit the ra is maintained if to the the entire amount received including money and any other_property is paid into an ira for the benefit cf such individual not later than the day after the day on which the individual receives the payment or distribution or ii the entire amount received including money and any other_property is paid into an eligible_retirement_plan other than an ira after the for the benefit of such individual nat later than the day gate on which the payment or distribution is received except that the maximum amount which may be paid into such plan may not exceed the portion of the amount received which is includible in gross_income determined without regard to sec_408 sec_408 b of the code provides that sec_408 does not apply to any amount described in sec_408 3a received by an individual from an ira if at any time during the one-year period ending on the day of such receipt such individual received any other amount described in sec_408 from an ira which was not includible in gross_income because of the application of sec_408 sec_408 d of the code provides a similar 60-day rollover period for partial rollovers sec_408 of the code provides that the rollover provisions of sec_408 does not apply to any amount required to be distributed under sec_408 sec_408 i of the code provides that the secretary may waive the 60-day requirement under sec_408 and sec_408 of the page of code where the failure to waive such requirement would be against equity or good conscience including casualty disaster or other events beyond the reasonable control of the individual subject_to such requirement only distributions that occurred after date are eligible for the waiver under sec_408 d 3x of the code a revproc_2003_16 i r date provides that in determining whether to grant a waiver of the 60-day rollover requirement pursuant to sec_408 the service will consider all relevant facts and circumstances including errors committed by a financial_institution inability to complete a rollover due to death disability hospitalization incarceration restrictions imposed by a foreign_country or postal error the use of the amount distributed for example in the case of payment by check whether the check was cashed and the time elapsed since the distribution occurred ' the information and documentation submitted by taxpayer a with her assertion that her failure to accomplish timely rollovers of amounts a b and g within the 60-day rollover periods was due to errors committed by her financial advisor and her medical_condition which impaired her accomplish timely rollovers of amounts a b and c ability to is consistent therefore pursuant to sec_408 i of the code the service hereby waives the 60-day rollover requirement with respect to the distribution of is granted a period of amounts a b and c from iras x y and z taxpayer a into days from the issuance of this ruling letter to contribute amounts a and c an eligible rollover ira provided all other requirements of sec_408 of the code except the 60-day requirement are met with respect to such contribution amounts a b and c will be considered rollover_contributions within the meaning of sec_408 of the code this ruling does net authorize the rollover of amounts that are required to be distributed by sec_401 a of the code no opinion is expressed as to the tax treatment of the transaction described herein under the provisions of any other section of either the code or regulations which may be applicable thereto this letter is directed only to the taxpayer who requested it sec_6110 of the code provides that it may not be used or cited as precedent a copy of this letter_ruling has been sent to your authorized representative pursuant to a power_of_attorney on file in this office if you wish to inquire about this ruling please contact please address all correspondence to se t ep ra t4 at sincerely yours poe ether donzell h littlejohn manager employee_plans technical group enclosures deleted copy of ruling letter notice of intention to disclose cc


internal_revenue_service department of the treasury washington dc index no number release date person to contact telephone number refer reply to cc dom p si -- plr-113643-99 date date legend partnership partnership m state state state state city city corporation gp1 lp1 lp2 lp3 lp4 corporation corporation service address plr-113643-99 county individual a a b c d e f g h i k l m n o p q r s t u v w dear plr-113643-99 this letter responds to your authorized representative’s letter dated a and subsequent submission on behalf of partnership requesting a ruling that the acquisition of a project by partnership is in conformance with the 10-year holding_period requirement in sec_42 of the internal_revenue_code the internal_revenue_service district_office that will have examination jurisdiction over partnership is located in city the relevant facts as represented in your submissions are set forth below facts partnership is a state limited_partnership consisting of corporation a state nonprofit public benefit corporation as managing general_partner gp1 a state general_partnership as administrative general_partner lp1 a state limited_partnership as special limited_partner and lp2 a state limited_partnership as limited_partner the ownership interests in partnership are as follows c to the limited_partner d to the special limited_partner d to the managing general_partner and d to the administrative general_partner the general partners of the administrative general_partner are corporation a state corporation whose president is e and corporation a state corporation whose president is f corporation owns a g interest in the administrative general_partner and corporation owns an h interest partnership owns real_property located at address on which partnership as its sole purpose plans to develop a b-unit affordable housing apartment complex for low- income seniors the project partnership intends to set_aside of the project’s units for low-income seniors in order for the project to be economically feasible the project must utilize low-income_housing tax_credits partnership acquired the project property on i from partnership m a state partnership partnership m acquired the property through a grant deed dated k and recorded l executed by its partners f and m partners f and m acquired the property through a trustee’s sale each partner received an individual one-half interest in the property through a trustee’s deed upon sale dated n and recorded o individual a doing business as service as trustee under a deed_of_trust executed the trustee’s deed upon sale after the foreclosure of a deed_of_trust on the property when the then- owner lp3 a state limited_partnership defaulted on its mortgage obligations and filed for bankruptcy lp3 had owned the property since p when lp4 a state limited_partnership granted the property to lp3 by a partnership grant deed dated q and recorded on r the development of the project involves the rehabilitation of a motel that was once a chain hotel complex consisting of a one-story lobby lounge and restaurant plr-113643-99 building and three two-story guest room buildings in city a rural unincorporated area in county since s when the motel operation was closed down and abandoned the buildings on the property have been vacant and uninhabited over the years the property gradually deteriorated until the buildings became mere shells with no doors or windows in place trespassers had free access to the buildings which they vandalized and defaced with graffiti the project has been uninhabited for more than years partnership specifically represents the following partnership acquired the four buildings that comprise the project by purchase as defined in sec_179 the project was not previously placed_in_service by partnership or by a person who was a related_person as defined in sec_42 with respect to partnership as of the time the project was last placed_in_service to the best of the knowledge of partnership or partnership’s representative there have been no nonqualified substantial improvements to the project since it was last placed_in_service in t the project is not currently fit to be inhabited and has been uninhabited since u a certificate of occupancy will be obtained from county only upon the completion of the project to the best of the knowledge of partnership or partnership’s representative no prior owner of the project was allowed a low-income_housing tax_credit under sec_42 for the project to the best of the knowledge of partnership or partnership’s representative the owners of the project immediately prior to partnership did not take depreciation_deductions for the project that prior to the acquisition of the project by partnership on i the project was last placed_in_service on or about v when lp4 acquired the project that from the date the project was acquired by lp3 on w until the date the project was acquired by partnership on i the project was not used for any function and was not ready and available for use for any specific function partnership will pay or incur amounts chargeable to the capital_account for the rehabilitation of the project’s buildings allocable to one or more low-income units a b c d e f g h i j plr-113643-99 k l m partnership will make expenditures during a 24-month period and such expenditures will equal the greater of of the adjusted_basis of the project’s buildings or an average of dollar_figure per low-income_unit the project will be operated as affordable residential_rental_property for seniors from the time it is placed_in_service partnership will complete the rehabilitation of the project’s buildings and will be eligible for the low-income_housing_credit under sec_42 n all other terms and conditions of sec_42 and related sections will be met ruling requested a ruling is requested that the acquisition of the project by partnership be determined to be in conformance with the 10-year holding_period requirement in sec_42 law and analysis sec_38 provides for a general_business_credit against tax that includes the amount of the current_year_business_credit sec_38 provides that the amount of the current_year_business_credit includes the low-income_housing_credit determined under sec_42 sec_42 provides that for purposes of sec_38 the amount of the low- income housing_credit determined under this section for any taxable_year in a 10-year credit_period shall be an amount equal to the applicable_percentage of the qualified_basis of each qualified_low-income_building in the case of any qualified_low-income_building placed_in_service by the taxpayer after sec_42 provides in part that the term applicable_percentage means the appropriate percentage prescribed by the secretary for the month applicable under sec_42 or ii sec_42 provides that the percentages prescribed by the secretary for any month shall be percentages that will yield over a 10-year period amounts of credit that have a present_value equal to i percent of the qualified_basis of new buildings that are not federally_subsidized for the taxable_year and ii percent of the qualified_basis of existing buildings and of new buildings that are federally_subsidized for the taxable_year sec_42 defines a new_building as any building the original_use of which begins with the taxpayer sec_42 defines an existing_building as any building that is not a new_building sec_42 provides that the qualified_basis of any qualified_low-income_building for any taxable_year is an amount equal to - i the applicable_fraction plr-113643-99 determined as of the close of such taxable_year of ii the eligible_basis of such building determined under sec_42 sec_42 provides that for purposes of sec_42 the eligible_basis of an existing_building is i in the case of a building meeting the requirements of sec_42 its adjusted_basis as of the close of the first taxable_year of the credit_period and ii zero in any other case the requirements of sec_42 are met if i the building is acquired by purchase as defined in sec_179 ii there is a period of at least years between the date of its acquisition by the taxpayer and the later of -- i the date the building was last placed_in_service or ii the date of the most recent nonqualified_substantial_improvement of the building iii the building was not previously placed_in_service by the taxpayer or by any person who was a related_person with respect to the taxpayer as of the time previously placed_in_service and iv except as otherwise provided in sec_42 a credit is allowable under sec_42 by reason of sec_42 with respect to the building sec_42 defines nonqualified_substantial_improvement to mean any substantial_improvement if sec_167 as in effect on the day before the date of the enactment of the revenue reconciliation act of was elected with respect to such improvement or sec_168 as in effect on the day before the date of the tax_reform_act_of_1986 applied to such improvement under sec_42 the date of a substantial_improvement is the last day of the 24-month period under sec_42 section sec_42 defines a substantial_improvement to be the improvements added to the capital_account of a building during any 24-month period but only if the sum of the amounts added to the account during this period equals or exceed sec_25 percent of the adjusted_basis of the building determined without regard to sec_1016 and as of the first day of the period sec_42 provides that for purposes of determining under sec_42 when a building was last placed_in_service there shall not be taken into account any placement in service in connection with the acquisition of the building in a transaction where the basis of the building in the hands of the person acquiring it is determined in whole or in part by reference to the adjusted_basis of the building in the hands of the person from whom acquired sec_1_167_a_-11 of the income_tax regulations provides that property is first placed_in_service on the date that it is first placed in a condition or state of readiness and availability for a specifically assigned function whether in a trade_or_business in the production_of_income in a tax-exempt activity or in a personal activity plr-113643-99 notice_88_116 1988_2_cb_449 provides that the placed-in-service date for a new or existing_building used as residential_rental_property is the date on which the building is ready and available for its specifically assigned function ie the date on which the first unit in the building is certified as being suitable for occupancy in accordance with state or local law under notice_88_116 a building may be placed_in_service even though the rental units in the building are not currently occupied by low- income tenants revrul_91_38 1991_2_cb_3 provides that in general a transfer of low-income_housing property results in a new placed_in_service_date if on the date of the transfer the property is ready and available for its intended purpose sec_1_46-3 provides that for purposes of the sec_38 credit property shall be considered placed_in_service in the earlier of the following taxable years i the taxable_year that under the taxpayer’s depreciation practice the period for depreciation with respect to such property begins or ii the taxable_year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function whether in a trade_or_business in the production_of_income in a tax-exempt activity or in a personal activity partnership’s specific ruling_request requires the application of the above facts to the10-year holding_period requirement of sec_42 sec_42 provides that there be at least years between the date of an existing building’s acquisition by a taxpayer and the later of i the date the building was last placed_in_service or ii the date of the most recent nonqualified_substantial_improvement of the building under the represented facts partnership acquired the project on i partnership specifically stipulates that the project was last placed_in_service when lp4 acquired the project in t partnership also represents that to the best of the knowledge of partnership or partnership’s representative there have been no nonqualified substantial improvements to the project since it was last placed_in_service in t thus based upon partnership’s factual representations and specific stipulation a period of years exists between the date the partnership acquired the project and the date the project was last placed_in_service and the date of the most recent nonqualified_substantial_improvement to the project conclusion accordingly based solely on partnerships’s representation’s of fact and relevant law as set forth above we conclude that the acquisition of the project by partnership is in conformance with the 10-year holding_period requirement of sec_42 plr-113643-99 no opinion is expressed or implied regarding the application of any other provisions of the code or regulations specifically we express no opinion on whether the project qualifies for the low-income_housing_credit under sec_42 in accordance with the power_of_attorney filed with the ruling_request we are sending a copy of this letter_ruling to partnership’s authorized representative this ruling is directed only to the taxpayer who requested it sec_6110 provides that it may not be used or cited as precedent sincerely yours harold e burghart harold e burghart assistant to the branch chief branch office of assistant chief_counsel passthroughs and special industries enclosure copy


id office uilc cca_2011070112201337 ---------- number release date from ------------------- sent friday july pm to -------------------- cc ---------------------------------------------------------------------- subject re amended tefra filed after years the adjustments are subject_to the tefra partnership procedures for two reasons sec_6233 mandates that if a tefra partnership return is filed then the tefra procedures apply even if it is ultimately determined through aar procedures or otherwise that no tefra partnership exists secondly if a partnership_interest is held through a nominee disregarded_entity or sham entity the small_partnership_exception to the tefra procedures does not apply revrul_2004_88 the fact that amended returns were filed showing the ultimate owners rather than their nominees does not change the applicable procedure if the statutes are open we can still issue fpaa's of if the tax has already been paid we don't have to do anything


cca_2014050216583146 id uilc number release date from sent friday may pm to cc bcc subject re request for review of advice memo designation of representative for former s_corporation -- ----------------------- hi ----- we have reviewed the attached memorandum and disagree with the conclusion when a corporation is audited the form_2848 must be signed by an officer of the corporation who has the authority under state law to legally bind the corporation see sec_601_503 even for periods during which an s election is in effect when the corporation is audited the corporation is the taxpayer neither the former shareholders nor the former officers of the corporation have the authority to bind the corporation the former shareholders cannot therefore sign the form_2848 on behalf of the corporation the form_2848 that was signed by the corporation's vice president taxes is sufficient for all of the corporation's prior tax years regardless of whether he had a role in the corporation during the prior years in which it was an s_corporation as long as he now has authority under state law to bind the corporation if you have any questions or concerns please don't hesitate to contact me thanks ----------------- ------------ ---------------------


o f f i c e o f t h e c h i e f c o u n s e l department of the treasury i n t e r n a l r e v e n u e s e r v i c e w a s h i n g t o n d c date number release date conex-128800-10 uil ------------------------------- --------------------- ------------------------------- dear ---------------- this letter responds to your letter dated date to president barack obama about your eligibility for the first-time_homebuyer credit for a home purchased on -------- --------------------- on date the department of housing and urban development to which the white house had forwarded your letter for response asked the internal_revenue_service to reply to you you asked why the first-time_homebuyer credit for applies to purchases made on or after date and whether the credit may be applied retroactively to the period between date and date generally sec_36 of the internal_revenue_code provides a credit for a first-time_homebuyer of a principal_residence purchased on or after date and before date the statutory effective date is specific and the statute provides no administrative exceptions the internal_revenue_service has no authority to modify the effective date or allow the credit retroactively any change to the law would require legislative action by the congress conex-128800-10 i hope this information is helpful if you have any questions please contact ---------------- ----- identification_number ------------- at -------------------- sincerely william a jackson chief branch office of associate chief_counsel income_tax accounting


t c no united_states tax_court lawrence v and katharine t brookes petitioners v commissioner of internal revenue respondent docket no filed date ps were partners in a partnership that was the subject of a partnership proceeding r mailed a notice of final_partnership_administrative_adjustment fpaa for taxable years and to the tax_matters_partner tmp the tmp filed a petition and ps filed a motion to participate in the partnership proceeding which this court granted the tmp settled the partnership case and certified that no party objected to the settlement ps did not receive notice of the settlement before the decision was entered by this court but received notice of the decision days after it was entered ps object to the settlement and claim interests adverse to those of the tmp r assessed deficiencies in ps' federal income taxes for and as computational adjustments based on the partnership adjustments see sec_6231 i r c thereafter r mailed ps a notice_of_deficiency for affected items determining additions to tax for and ps filed a petition for redetermination with respect to the affected items deficiency and the and assessments attributable to their share of partnership items r filed a motion to dismiss for lack of jurisdiction and to strike the portion of the petition that attempts to put the and assessments into issue ps argue they were denied due process in the partnership proceeding because they did not have an opportunity to be heard and did not have the right to appeal from a stipulated decision ps filed a cross-motion to dismiss for lack of jurisdiction because r did not issue a notice_of_deficiency for the partnership adjustments before assessment held we lack jurisdiction in this affected items proceeding to redetermine the deficiencies resulting from the partnership adjustments for and held further ps were not denied their rights to procedural due process based on their lack of notice of the settlement even though their position was adverse to that of the tmp and they did not have the right to appeal ps could have moved to vacate the decision in the partnership proceeding upon receiving notice of that decision held further r is not required to issue a notice_of_deficiency with respect to partnership items upon the completion of a partnership proceeding before assessing deficiencies for the partnership adjustments lawrence v brookes for petitioners allan d hill for respondent opinion gerber judge respondent issued a notice_of_deficiency for petitioners’ and tax years determining additions to tax attributable to petitioners' partnership_interest in barrister equipment associates serie sec_122 a limited_partnership barrister the notice_of_deficiency was issued following the conclusion of a partnership proceeding involving barrister's and taxable years in the parlance of partnership proceedings additions to tax are described as affected items and come into play following the completion of the partnership proceeding in response to the affected items notice_of_deficiency petitioners filed a petition with this court at the time their petition was filed petitioners resided in berkeley california petitioners attempted to place in issue not only the additions to tax but also the adjustments to their and income_tax attributable to their partnership items determined in the barrister partnership proceeding respondent has not issued a notice_of_deficiency to petitioners for respondent moved to dismiss for lack of jurisdiction the portion of the petition relating to the and tax and interest assessed as a computational adjustment in the wake of the barrister proceeding conversely petitioners by a cross- motion seek a dismissal for lack of jurisdiction as to the assessment of the and tax and interest on the ground that respondent failed to issue a notice_of_deficiency for the and tax relating to the barrister partnership items prior to the assessment in addition petitioners moved to restrain collection of the and assessed tax and interest a threshold question that is key to resolving these motions is whether we have jurisdiction to entertain controversies involving petitioners’ assessed and partnership income_tax liabilities in the context of this affected items proceeding which is separate from the partnership proceeding involving barrister background notices of final_partnership_administrative_adjustment fpaa for and were mailed on date to barrister and its general_partner tax_matters_partner tmp the tmp timely filed a petition on date petitioners here moved to participate in the barrister partnership proceeding and this court granted their motion the barrister proceeding concluded by the entry of an agreed decision on date pursuant to an agreement between respondent and the tmp the tmp by means of its execution of a stipulated decision document certified that no party objected to the entry of the decision respondent assessed tax and interest against petitioners for and reflecting the treatment of their share of partnership items in accordance with the decision entered in the barrister proceeding petitioners herein claim that they were neither given notice of nor were in agreement with the settlement between respondent and the tmp petitioners further contend that respondent knew at the time of the execution of the stipulated decision that they had not received notice of the settlement petitioners however did receive a copy of the decision on date we assume for purposes of these motions that petitioners' claims can be substantiated days after its entry in this regard petitioners claim that there was a fraud upon the court as to the entry of the decision in the partnership proceeding respondent counters that assuming the court was fraudulently misled about the notification of participating partners we lack jurisdiction to consider such matters in the context of petitioners’ affected items proceeding petitioners also claim that they were denied due process thus petitioners argue that the decision in the barrister partnership proceeding is not res_judicata and binding as to them in addition to their contentions as to the validity of the prior_partnership proceeding petitioners also maintain that respondent was required to issue a notice_of_deficiency before assessing and attempting to collect the and income_tax attributable to their barrister partnership items in other words petitioners interpret the internal_revenue_code as requiring respondent to issue a notice_of_deficiency before assessing a computational adjustment reflecting the partnership items even though a partnership proceeding has been completed pursuant to sec_6221 through discussion unless otherwise indicated section references are to the internal_revenue_code in effect for the periods under consideration and rule references are to the tax_court rules_of_practice and procedure initially we note that we have jurisdiction to consider the question of our jurisdiction over the parties or subject matter 83_tc_626 res judicata--petitioners contend that the doctrine_of res_judicata does not bar relitigation of the barrister partnership items because they are presenting issues regarding those items not addressed in the partnership proceeding accordingly they argue that they are not bound by the barrister proceeding respondent without agreeing with their underlying arguments argues that petitioners should have moved this court to reconsider or vacate the decision in the barrister partnership proceeding petitioners have framed the issue in a manner that suggests two separate paths of inquiry to determine whether we have jurisdiction over the partnership items in this proceeding first we must analyze the statutory partnership provisions to determine whether we can consider the tax assessments from a partnership proceeding in petitioners' affected items proceeding if we decide that the statutory provisions do not offer the relief sought we then consider petitioners’ constitutional claim that they were deprived of procedural due process sec_6221 through provide for a unified partnership proceeding to determine the tax treatment of partnership items separate from and independent of a partner's deficiency proceeding involving nonpartnership_items 87_tc_783 h conf rept pincite 1982_2_cb_600 consequently the portion of any deficiency attributable to partnership items cannot be considered in a partner's personal case and must be considered solely in a partnership proceeding sec_6221 sec_6226 maxwell v commissioner supra pincite thus we lack jurisdiction to redetermine a deficiency attributable to partnership items in a partner-level proceeding involving nonpartnership_items 96_tc_707 95_tc_193 93_tc_730 maxwell v commissioner supra pincite sec_6231 defines a partnership_item as any item required to be taken into account for the partnership's taxable_year to the extent that the secretary provides by regulations that the item is more appropriately determined at the partnership level than at the partner level n c f energy partners v commissio89_tc_741 1987_partnership items include each partner's proportionate share of the partnership's aggregate income gain loss deduction or credit sec_6231 sec_301_6231_a_3_-1 proced admin regs affected items are nonpartnership_items defined in 102_tc_683 as follows affected items are defined under sec_6231 as any item to the extent such item is affected by a partnership_item 95_tc_209 the first type of affected_item is a computational adjustment made to record the change in a partner’s tax_liability resulting from adjustments reflecting the proper treatment of partnership items sec_6231 white v commissioner supra once partnership level proceedings are completed respondent is permitted to assess a computational adjustment against a partner without issuing a deficiency_notice sec a the second type of affected_item requires a partner level determination n c f energy partners v commissio89_tc_741 section a a i provides that the normal deficiency procedures apply to those affected items which require partner level determinations the additions to tax for negligence and valuation_overstatement are affected items requiring factual determinations at the individual partner level n c f energy partners v commissioner supra pincite it is well settled that we lack jurisdiction to consider partnership items in an affected items proceeding 93_tc_730 although petitioners allege error concerning affected items additions to tax they are not pursuing the merits of that controversy at this time instead they ask us to redetermine tax attributable to partnership items because they did not receive notice of the settlement of those items in crowell v commissioner supra we considered the effect of a taxpayer’s lack of notice of the partnership proceeding on the validity of an affected items notice_of_deficiency in crowell the taxpayers argued that they had not received notice of the partnership-level proceeding from respondent in accordance with sec_6223 and no petition was filed to contest the fpaa we reasoned that the partnership items set forth in the crowell fpaa would become nonpartnership_items under sec_6223 if the taxpayers had not been sent proper notice see sec_6231 we concluded that under these circumstances whether sufficient notice of the partnership-level proceeding had been provided to the taxpayers could be considered in a partner- level proceeding as noted above petitioners do not presently seek to question the affected items set forth in the notice_of_deficiency issued to them further the lack of notice here does not concern an alleged failure by respondent to comply with sec_6223 but the tmp’s failure to notify petitioners and obtain their approval of the settlement between the tmp and respondent that alleged lack of notice does not permit the conversion of a partnership_item into a nonpartnership item see sec_6231 and c furthermore petitioners became participating partners in the barrister proceeding and received notification of the entry of the stipulated decision at a time when they could have sought to have that decision reconsidered or vacated petitioners do not present nor have we found any authority permitting us to redetermine partnership items in this affected items proceeding sec_6226 which governs judicial review of adjustments to partnership items grants jurisdiction over all partnership items and the proper allocation of the partnership items among the partners to the court in which a petition is filed with respect to the fpaa our jurisdiction for the instant proceeding is based on the issuance of a notice_of_deficiency with respect to nonpartnership_items notwithstanding the merits of petitioners' res_judicata argument we lack jurisdiction over the barrister partnership items therefore we will grant respondent's motion to dismiss and strike allowing petitioners to challenge the decision in the partnership proceeding in their affected items case would ignore congressional intent that there be a unified single resolution of partnership items due process--petitioners argue that allowing the assessment of the and tax based on the decision in the barrister partnership proceeding deprives them of their right to procedural due process petitioners contend that their interests are adverse to those of the tmp and that the stipulated decision by the tmp denied their right to a trial and to appeal the decision our jurisdictional inability to address the tax_assessment attributable to partnership items in the context of this deficiency proceeding does not violate petitioners' rights to due process we have found that the tefra partnership provisions generally do not violate taxpayers' rights to due process see 95_tc_51 affd without published opinion 995_f2d_235 9th cir as a general_rule a taxpayer possesses a constitutionally cognizable property interest invoked by the assessment and collection_of_taxes accordingly petitioners must receive an opportunity to present their case 281_us_673 although petitioners did not receive notice of settlement they did receive notice of the entry of the decision in the partnership-level proceeding upon entry of the decision petitioners had days in which to file a motion to vacate that decision rule after days special leave of court is required to file such a motion granting a motion for leave lies within the sound discretion of the court 872_f2d_245 8th cir affg tcmemo_1987_1 a decision generally becomes final after days unless appealed sec_7481 once a decision of this court becomes final we may still vacate the decision but only in certain narrowly circumscribed situations 293_us_191 petitioners argue that a fraud was committed upon the court this court may vacate a final_decision if obtained through fraud upon the court 859_f2d_115 9th cir affg 86_tc_1319 511_f2d_929 2d cir 464_f2d_368 3d cir casey v commissioner tcmemo_1992_672 if the barrister decision is to be vacated however it cannot be accomplished in the context of petitioners’ affected items proceeding is a separate deficiency_notice required as a prerequisite to assessment of partnership items --normally a taxpayer’s income_tax_liability for each year is separate and subject_to resolution in a single administrative and or legal proceeding in congress provided for a separate unified partnership-level proceeding thereby creating the possibility that an individual partner may be involved in two or more separate proceedings for any taxable_year respondent’s determinations of partnership and nonpartnership_items are subject_to differing notice requirements to the partners partners receive notices of deficiency for their nonpartnership and or affected items at the partnership level the tax_matters_partner and notice partners receive an fpaa the appropriate notice must first be issued before respondent can assess either the partnership or the nonpartnership_items petitioners here question the separate nature of partnership and partner-level proceedings vis-a-vis respondent’s ability to assess a computational adjustment reflecting partnership items without first issuing a notice_of_deficiency to the partner in essence petitioners contend that even though respondent issued an fpaa and a partnership proceeding in which petitioners participated was begun and concluded respondent must issue a separate notice_of_deficiency to petitioners prior to assessing the partnership items courts have repeatedly held that the normal deficiency procedures including the notice_of_deficiency do not apply to the allocation of partnership items among partners 64_f3d_101 2d cir 992_f2d_955 9th cir 99_tc_121 affd 16_f3d_75 5th cir 95_tc_243 despite this long line of cases petitioners argue that a notice_of_deficiency is required because the partnership provisions do not vest respondent with authority to assess partnership items against the partners upon the conclusion of a partnership proceeding thus respondent must rely on sec_6201 for that authority petitioners reason that since sec_6201 refers to the deficiency procedures of subchapter_b respondent must comply with that subchapter for all assessments including assessments attributable to partnership items section a provides that in general the deficiency_notice procedures do not apply to the assessment of computational adjustments a computational adjustment is the change in the tax_liability of a partner which properly reflects the tax treatment of a partnership_item sec_6231 in short a computational adjustment reflects the amount of change in the tax_liability of a partner that is assessed after a fpaa proceeding becomes final palmer v commissioner tcmemo_1992_352 affd without published opinion 4_f3d_1000 11th cir however petitioners contend that section a should not be read to exempt from the deficiency procedures of subchapter_b a computational adjustment reflecting the treatment of partnership items petitioners suggest that the term tax_liability in the definition of computational adjustment refers to the amount due after respondent assesses a deficiency in accordance with subchapter_b sec_6225 restricts assessment of a deficiency attributable to a partnership_item until completion of the partnership proceedings while section a makes subchapter_b procedures inapplicable to that assessment thus contrary to petitioners' argument sec_6201 assessment authority is not limited to assessment under subchapter_b procedures the mere reference to subchapter_b in sec_6201 does not mean that respondent lacks assessment authority as to partnership items unless respondent adheres to subchapter_b procedures petitioners argue that respondent must comply with sec_6213 which requires a notice_of_deficiency prior to assessment however paragraph of sec_6213 refers to section a for the applicability of the notice requirement to deficiencies attributable to partnership items in addition sec_6216 provides for procedures relating to partnership items see subchapter_c those references belie petitioners' contention that respondent must comply with the deficiency procedures of subchapter_b before assessing a computational adjustment in addition requiring a notice_of_deficiency as a predicate for such assessment of partnership items after the conclusion of a partnership proceeding would ignore congressional intent to provide for a separate partnership proceeding we note that petitioners concede that a notice_of_deficiency with respect to partnership items would not give taxpayers the right to relitigate the partnership items in addition the partnership provisions safeguard due process rights by providing taxpayers with notice of the partnership_adjustment and an opportunity to participate in the partnership proceeding petitioners’ approach would add a procedural step that creates a mere formality and does not provide any additional due process protection in light of the lengthy list of cases that hold that a notice_of_deficiency is not required before assessment of a computational adjustment we find petitioners' argument that such a notice is required unpersuasive we will deny petitioners' motion to dismiss for lack of jurisdiction because the assessment of petitioners’ and income_tax and interest based on the decision entered in the barrister proceeding is not within our subject-matter jurisdiction in this case it follows that we have no authority to restrain collection of the assessed and income_tax and interest to reflect the foregoing an order granting respondent’s motion and denying petitioners’ motions will be issued