Wayne Caldwell Escrow Partnership, Roy Dimon, John and Mary Schuenemann, Joseph and Louise O'Neal, Charles and Lovetta Niven, Chalton and Cynthia Thomas, Partners Other Than the Tax Matters Partner, (1996)

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Wayne Caldwell Escrow Partnership, Roy Dimon, John and Mary Schuenemann, Joseph and Louise O'Neal, Charles and Lovetta Niven, Chalton and Cynthia Thomas, Partners Other Than the Tax Matters Partner, (1996)

T.C. Memo. 1996-401

UNITED STATES TAX COURT WAYNE CALDWELL ESCROW PARTNERSHIP, ROY DIMON, JOHN AND MARY SCHUENEMANN, JOSEPH AND LOUISE O'NEAL, CHARLES AND LOVETTA NIVEN, CHARLTON AND CYNTHIA THOMAS, PARTNERS OTHER THAN THE TAX MATTERS PARTNER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 8043-93. Filed August 27, 1996.

James L. Kennedy, for petitioners.

William A. Roberts and Steven W. Weinstein, for intervening partner Bill Denny.

Kemble White, for participating partner Wayne H. Caldwell (on brief only).

John P. Haddock, Jr., participating partner, pro se. James R. Turton, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION WHALEN, Judge: This case is before the Court to decide cross-motions to dismiss for lack of jurisdiction. Respondent's motion argues that the instant petition for readjustment must be dismissed because petitioners failed to file the petition within the time required by section 6226(b). All section references are to the Internal Revenue Code as amended. Petitioners' motion argues that the petition must be dismissed because the notice of final partnership administrative adjustment (notice of FPAA) was not mailed to the tax matters partner, as required by section 6225(a), and was not mailed to notice partners, as required by section 6223(a)(2), within the time required by section 6223(d)(2). Petitioners argue that, as a result of respondent's failure to mail the notice of FPAA to notice partners, all of the partnership items of the subject partnership were converted into nonpartnership items, pursuant to sections 6223(e) and 6231(b)(1)(D) and cannot be readjusted in this partnership proceeding.

FINDINGS OF FACT Some of the facts have been stipulated by the parties. The stipulation of facts filed by the parties and the exhibits attached thereto are incorporated herein by this reference. We note that the stipulation of facts was not signed by or on behalf of participating partners Wayne H. Caldwell or John P. Haddock, Jr. We also note that, at trial, the parties orally agreed that a document entitled "Stipulation of Facts Pursuant to Rule 122" should be included in the record of this case. Hereinafter, we refer to that document as the Rule 122 stipulation.

An evidentiary hearing was held on the subject cross-motions to dismiss, and the parties presented testimonial and documentary evidence in support of their motions. Thereafter, the parties filed post-hearing briefs. The following findings of fact are based upon the record of the evidentiary hearing, the stipulation of facts, and the Rule 122 stipulation filed by the parties.

At the time the petition was filed, the Wayne Caldwell Escrow Partnership (partnership) was a general partnership organized and existing under the laws of the State of Texas. The partnership's mailing address was in Dallas, Texas, at the office address of one of its partners, Mr. Wayne H. Caldwell, who was also a certified public accountant.

The partnership had been formed in 1983 by Mr. Caldwell for the purpose of leasing and distributing laser disks and copies of movies. The activities of the partnership were governed by a partnership agreement. According to paragraph 3 of the partnership agreement, there were 27 persons who were partners as of the end of 1983. The following is a list of partners, their cash contributions, and their percentage interests in t...

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