In Uncategorized on 10/05/2022 at 16:29

Today we have another entry in my “I Won’t Mourn TEFRA” stakes, Silver Run Holdings, LLC, Silver Run Partners, LLC, A Partner Other Than The Tax Matters Partner, Docket No. 12660-21, filed 10/5/22. Partners filed timely seriatim petitions for the Holdings FPAA, one as TMP and t’other as notice partner. Partners want partial summary J from Judge Patrick J. (“Scholar Pat”) Urda, deciding which petition goes forward, and which gets tossed.

The LLC operating agreement for Holdings designates two co-managers, one of whom is a member and t’other isn’t, but Partners is none of the above. And neither co-manager of Holdings, which got the FPAA, petitioned.

Both the year-at-issue 1065 and correspondence at Exam say Partners is the TMP. Except only a general partner of Holdings can be TMP. And “(O)nly a member-manager of a limited liability company can be a general partner. See Treas. Reg. § 301.6231(a)(7)-2(a).” Order, at p. 2.

Clear? Thought not.

Judge Scholar Pat to the rescue. I leave in the dates, as they are important.

“The record establishes (and the parties agree) that SR Partners was not a member-manager of Silver Run. SR Partners thus was not a general partner of Silver Run and could not act as its tax matters partner. SR Partners thus was a notice partner on June 8, 2021, and the petition it filed in Docket No. 10457-21 constituted a premature petition under section 6226(b)(5) as it was filed within the 90-day tax matters partner petition window. This premature petition is deemed to be filed on the last day of the 60-day notice partner window, i.e., August 23, 2021. See § 6226(b)(5).

“SR Partners properly initiated this case as a notice partner on June 28, 2021, during the 60-day period following the 90-day window for petitions by tax matters partners. See § 6226(b). The petition here was filed before the date on which the petition in Docket No. 10457-21 was deemed to be filed, and we therefore have jurisdiction over this case.” Order, at p. 2.

I’ve chronicled chases after tax matterers, and the concomitant jousts among partners as to who exactly is entitled to petition a FPAA. See my blogpost “Tax Smatterer,” 3/12/15, for one such.

Judge Alina I. (“AIM”) Marshall has the ongoing chase after a missing TMP, in Colorado Land and Holdings, LLC, John Sfondrini, Tax Matters Partner, Docket No. 11875-20, filed 10/5/22. Y’all will recall that the Coloradans wanted to toss John and sub in Gerry. What, no? Then see my blogpost “No Bipartisan Cure,” 9/21/21.

The Coloradans and IRS searched high and low for documents showing the removal of John and installation of Gerry, but can’t find the signed originals. Thus John is in, at least until John gets a chance to be heard. See Rule 250(b).

So Judge AIM orders the parties to dig out what addresses they have for John so Judge AIM can give him a view halloo, and report whether they still want to toss him and sub in Gerry.

Taishoff says I praise Congress for getting rid of this ridiculous rigamarole. And IRS’ Reg. Section 301.6223-1(e) seems a proper and quick solution for the problem of the absent or recalcitrant representative.

But partners, beware, before entrusting your “lives, fortunes and sacred honor” to any non-partner representative. Is a representative a fiduciary? What duty does he/she owe you?


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: