Attorney-at-Law

DROPPING THE PILOT

In Uncategorized on 01/11/2022 at 17:39

I can’t think any compendium of great political cartoons would be complete without Sir John Tenniel’s 1890 classic of the “Iron Chancellor” von Bismarck departing the bridge of the German ship of state he had so brilliantly steered into existence.

Today Judge Courtney D (“CD”) Jones, though no cartoonist, draws us a picture of how to replace a TMP. And that outgoing TMP is the Master Pilot of the GA boondock conservation easement dodge, Dave (“Homestead”) Hewitt, he who saved Daddy’s homeplace from the mobile homebodies, and fired the torpedo that 11 Cir used to sink IRS’ “highly contestable readings of what it means to be perpetual.” You’ll recall after Dave donated his properly valued conservation easement, he turned to the dark side and started flogging dubious deals. See my blogpost “Gude Faith, He Maunna’ Fa’ That – Part Deux,” 6/17/20.

Today, Dave is leaving one of his productions, Collinsville Land, LLC, Collinsville Land Partners, Tax Matters Partner, Docket No. 12022-20, filed 1/11/21. Dave was TMP when IRS pulled its return for examination (audit). Naturally, when IRS saw Dave’s name on a return, they reacted like Snoopy to The Red Baron.

While the exam was going on, Land Partners faxed a document to the RA on the exam signed by Dave and a partner of Land Partners removing Dave and subbing in Land Partners as TMP. Of course a FPAA followed. The Land Partners petitioned both as notice partner, and separately as TMP.

Judge CD eulogizes the now-extinct TMP. “We are mindful that a TMP is essential to the operation of TEFRA partnership proceedings. The TMP helps to ensure the fair, efficient, and consistent disposition of a partnership proceeding before this Court.” Order, at pp. 2-3. What the new “representative” created under the current régime will do is at best unclear.

The Land Partners want summary J that they are the TMP,. and they’ll move to toss the notice partner petition if they get it.

“Section 6626(a) provides that within 90 days after the day on which an FPAA is mailed to the TMP, the TMP may file with the Tax Court, a petition for readjustment of the partnership items for the taxable year. Section 6626(b) provides that if the TMP does not file a readjustment petition under subsection (a) with respect to any FPAA, any notice partner (and any 5-percent group) may, within 60 days after the close of the 90 -day period set forth in subsection (a), file with the Tax Court a petition for a readjustment of the partnership items for the taxable year. Section 6226(b)(5) provide that if a notice partner files a petition during the 90-day window for TMP petitions (commonly referred to as a ‘premature petition’), the premature petition is deemed to be filed on the last day of the 60-day notice partner window.”

Reg. Section 301.6231(a)(7)-1(d) says if the present TMP certifies that somebody else is TMP, the new TMP is subbed in. “The regulations further provide that the current TMP shall make the certification by filing with the service center with which the partnership return is filed a statement that includes information about the partnership; the partner filing the statement; the taxable year to which the designation relates; and other pertinent information. The statement must be signed by the partner filing the statement. See sec. 301.6231(a)(7)-1(d)(1) – (5), Proced. & Admin. Regs.” Order, at p. 2.

I’m sure my ultra-hip readers will cry with one voice “Hold on! The Land Partners faxed something to the RA at Exam. Nobody din’t say nuthin’ ’bout no service center!”

Judge CD Jones is on the case, chaps. “Respondent does not suggest that the filing requirement was not satisfied.” Order, at p. 3, footnote 5. If IRS don’t care, she don’t.

Judge CD Jones says the Land Partners are in fact the TMP, the notice partners petition unnecessarily complicates things, so let the Land Partners move to toss it.

Takeaway- In case it needs to be said again, read the Regs.

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