They taught us in the law school on The Hill Far Above, in the last millennium, that “expressio unius exclusio alterius.” I need not, of course, translate. But Section 7701(c) puts paid to this concept, and Judge Nega reinforces the lesson in Rock Cliff Reserve, LLC, Five Rivers Conservation Group, LLC, Tax Matters Partner, et al., Docket No. 12472-20, filed 9/13/23.

The Rock Cliffs object that IRS want to claim that what the Rock Cliffs donated was inventory property, and therefore limited by Section 170(e), and that the entities involved in this Dixieland Boondockery were not bona fide partnerships for tax purposes. So the Rock Cliffs want IRS precluded from arguing same.

“Petitioners cannot claim surprise that respondent’s July 19, 2023 letter raised the issue of limitations to charitable contribution deductions imposed by section 170(e) because respondent issued to each petitioner a Final Partnership Administrative Adjustment (FPAA) in 2020 identifying violation of the requirements of section 170 to support the deficiency determination. Complying with section 170(e) is one of the requirements of section 170 and is directly implicated by the language in the FPAAs that respondent issued to petitioners. Similarly, the breadth of the FPAA encompasses the validity of the transactions. All information regarding whether the entities involved in the transactions were bona fide partnerships is readily available to petitioners who will thus not be prejudiced by the presentation of such a theory at trial.” Order, at pp. 1-2.

Mentioning a Code provision brings in the entire provision.

I do have to ask why Judge Nega left the question of shifting BoP for trial. If he means to play the “preponderance of evidence” gambit, he should say so. But looking at the seven (count ’em, seven) trusty, high-priced, and battle-hardened attorneys for the Rock Cliffs shown in the printable docket search, I doubt very much they would be surprised.