Clovis I v. Comm'r of Internal Revenue

• Decision Date: 21 April 1987
• Docket Number: Docket No. 44228-86
• Citation: 88 T.C. 980,88 T.C. No. 53
• Parties: CLOVIS I, CARL E. AND HAZEL E. LOVELL, SR., PERSONS OTHER THAN TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: U.S. Tax Court

88 T.C. 980

88 T.C. No. 53

CLOVIS I, CARL E. AND HAZEL E. LOVELL, SR., PERSONS OTHER THAN TAX MATTERS PARTNER, Petitioner

v.COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 44228-86

United States Tax Court

Filed April 21, 1987.

R mailed to P, a notice partner of Clovis I, a partnership subject to the partnership audit and litigation provisions, letters proposing adjustments to Clovis I's 1982 and 1983 partnership return. HELD, the letters are not notices of final partnership administrative adjustments. HELD FURTHER, P's petition was prematurely filed, and this Court lacks jurisdiction Carl E. and Hazel E. Lovell, Sr., pro se.

Paul L. Dixon, for the respondent.

OPINION

WILLIAMS, JUDGE*:

This case is before us on respondent's motion to dismiss for lack of jurisdiction on the ground that respondent has not mailed a notice of final partnership administrative adjustment (‘FPAA‘) for the partnership items that are the subject of the petition. See section 6223(a)(2). ¹ The mailing of a FPAA is a prerequisite to the commencement of a partnership action. Section 6226(a)(1) ²; Rule 240(c), Tax Court Rules of Practice and Procedure; Maxwell v. Commissioner, 87 T.C. 783, 788 (1986). The issue we must decide is, however, one of first impression: whether the document mailed to petitioner is a FPAA.

Petitioner Carl E. and Hazel E. Lovell, Sr. ³ resided at Las Vegas, Nevada at the time the petition was filed.

On August 5, 1986 respondent mailed to petitioner two letters proposing adjustments to the returns of Clovis I for its taxable years ended December 31, 1982 and 1983. Clovis I is a partnership in which the Lovells were a partner during 1982 and 1983. In addition to a form cover letter on Internal Revenue Service letterhead for each year, petitioner also received a settlement agreement (Form 870- P) and a schedule of proposed adjustments. Each cover letter identifies Clovis I, the taxable year at issue, the return under examination (Form 1065) and provides a telephone number. Each letter states:

We are proposing adjustments to the return shown above. We will send our examination report explaining these adjustments to the Tax Matters Partner (the Representative of the Partnership for dealing with the IRS). If any other partner desires a copy of the examination report, he or she should request it from the Tax Matters Partner. If the Tax Matters Partner is unable to furnish copies, the partner should contact the person named above and the desired information will be provided.

The FPAA is to the litigation of partnership items and affected items pursuant to the partnership audit and litigation provisions of section 6221 et seq. what the statutory notice of deficiency is to tax controversies before this Court that involve respondent's determination of a deficiency, i.e., it is the notice to affected taxpayers that respondent has made a final administrative determination for particular tax years. Issuance of a FPAA is a prerequisite to an assessment arising out of partnership items or affected items. Section 6225(a); Maxwell v. Commissioner, 87 T.C. 783, 791 (1986). As with a statutory notice of deficiency, however, the statute does not explicate what constitutes a FPAA. Compare section 6212 with section 6223(a) and section 6213(a) with sections 6225(a) and 6226.

Because of the similar functions of the FPAA and the statutory notice of deficiency, we are convinced that the long established principle applicable to notices of deficiency, viz, that no particular form is necessary, should apply with equal force to a FPAA. Cf., e.g., Foster v. Commissioner, 80 T.C. 34, 229 (1983), aff'd in part, vacated in part, 756 F.2d 1430, per 9th Cir. (1985). As a corollary principle, whatever form a FPAA takes, it must minimally give notice to the taxpayer that respondent has FINALLY DETERMINED adjustments to the partnership return. Cf. Olsen v. Helvering, 88 F.2d 650 (2d Cir. 1937). ⁴

The document that petitioner believes to be a FPAA appears on its face to be a proposal and not a final administrative decision. The letter states what respondent PROPOSES. A FPAA, by contrast, would state what respondent HAD DETERMINED (or equivalent language). Furthermore, the letter specifically provides petitioner with the opportunity for additional administrative consideration by one of respondent's appeals officers and instructions on how to proceed to obtain that administrative review. Finally, the letter emphasizes the preliminary nature of respondent's proposals and the importance of the availability of the administrative appeal with the following caveat:

If we do not receive a written protest from one or more partners within 60 days and you have not executed * * * [the proposed settlement agreement], we will process this case based on the schedule of partnership adjustments and issue a notice of final partnership administrative adjustment.

The notices at issue are comparable to the ‘30-day letter‘ that normally precedes a statutory notice of deficiency. Like such a 30- day letter, the notices do not announce any determination but provide the taxpayer with respondent's proposed adjustments so...