              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 94-40453



MEDICAL & BUSINESS FACILITIES,
LTD., GERALD STEVENS, TAX MATTERS
PARTNER,
                                          Petitioner-Appellant,

                              versus

COMMISSIONER OF INTERNAL REVENUE,
                                          Respondent-Appellee.




                           No. 94-40527



MEDICAL & BUSINESS FACILITIES,
LTD., PHILLIP S. BROOKS,
TAX MATTER PARTNER,
                                          Petitioner-Appellee,

                              versus

COMMISSIONER OF INTERNAL REVENUE,

                                          Respondent-Appellant.

________________________________________________________________

             Appeals from the United States Tax Court
________________________________________________________________
                          (July 25, 1995)

Before REYNALDO G. GARZA, HIGGINBOTHAM, and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     A general partner of Medical & Business Facilities, Ltd.

signed consent forms for tax years 1983 through 1986, agreeing to

extend the period of limitations during which the Internal Revenue
Service could assess a deficiency.            MBFL is now arguing that the

general partner was not authorized to execute the consents and the

IRS's assessment is time barred.              We agree and reverse the Tax

Court's finding in favor of the Commissioner.



                                         I.

     Medical & Business Facilities, Ltd. was a partnership engaged

in the business of buying medical assets and leasing those assets

to medical enterprises.          The partnership was initially formed by

Gerald Stevens and James Wyllie in 1980 as a general partnership.

In 1981, additional partners were admitted and an amendment to the

partnership agreement was filed with the State of Louisiana,

registering the partnership as a partnership in commendam.                         A

partnership    in    commendam    is   similar    to    a   common      law   limited

partnership.    See La. Civ. Code Ann. art. 2837 (West 1994).

     The    amended    partnership       agreement     vested     management     and

control of the business in a managing general partner and a

management    committee    that    was    made   up    of   the   firm's      general

partners.      The    managing     general    partner       and   the    management

committee were to act collectively on all decisions with respect to

the management and control of the business, and their actions were

binding on the partnership and all of the partners. Gerald Stevens

was the managing general partner and owned the largest single

profit interest in MBFL.

     In September 1982, Stevens moved to California.                          Phillip

Brooks, a general partner, was appointed the assistant managing


                                         2
general    partner.      His   responsibility          was   to   carry    on   the

partnership's business activities in Stevens' absence.                     Brooks

resigned from this position on June 25, 1983, although he remained

a member of the management committee.                  In June 1983, Stevens

resigned as managing general partner.

       In 1983, Brooks prepared a second amendment to the partnership

agreement. This amendment purported to vest management and control

of the business in a management committee consisting of five

general partners.     Although the amendment lacked the signatures of

some of the general and limited partners, it was filed with the

State of Louisiana on January 28, 1986 and MBFL operated under the

new management structure.        Brooks was one of the five members of

the firm's new management committee. The committee hired Albert J.

Derbes, III, a tax lawyer and certified public accountant, to act

as manager of the partnership.

       Stevens executed the partnership's tax information return for

1983, and Brooks executed the 1984, 1985, and 1986 returns.                       In

1985,   the   IRS   discovered   that       MBFL   had   claimed     too   high    a

depreciation deduction for tax years 1983, 1984, and 1985.                  On May

6, 1985, IRS agent Joette Pfeiffer contacted the accountant who

prepared MBFL's 1983 tax return to find out who was MBFL's tax

matters partner for 1983.        The accountant contacted Derbes, who

informed Pfeiffer that Brooks was the TMP.

       On April 8, 1986, Pfeiffer met with Derbes and Brooks. During

that    meeting,    Brooks   executed       a   form   authorizing    Derbes      to

represent MBFL before the IRS.      Pfeiffer also asked Derbes to have


                                        3
the partnership's TMP execute a form consenting to the extension of

time to assess tax.        Brooks indicated that he was not certain

whether he could execute the form because he did not know which

partner was going to act as MBFL's TMP.            Pfeiffer then informed

Derbes and Brooks that if the partnership failed to designate a

TMP, the IRS would designate one for it.           Derbes and Brooks left

the   room,   and    Pfeiffer   inspected    MBFL's   books    and    records,

including the original and amended partnership agreements.              Before

Pfeiffer left that day, Derbes produced a consent signed by Brooks

extending the limitations period for the 1983 tax year to December

31, 1987.     Both Derbes and Brooks believed that Brooks had the

authority to sign the consent.

      Over the next few years, Brooks executed consents further

extending the limitations period for tax years 1983 through 1986.

On each form, Brooks signed on the line designated for the TMP.1

Brooks    executed   the   consents   in    an   effort   to   gain   time   to

substantiate the deductions and avoid involvement in a complicated

tax dispute at a time of severe financial difficulty for the

partnership.

      On June 28, 1991, Derbes filed a Freedom of Information Act

request with the IRS, seeking documents pertaining to MBFL's tax

years 1983 through 1986.          One of the documents that the IRS

produced was a memorandum prepared in July 1989 by an attorney at


      1
          On a few of the forms, Brooks signed his name in the
space labelled "Authorized Representative." In those instances,
however, Brooks' name was typed directly above his signature in the
space labelled "Tax Matters Partner."

                                      4
the IRS.     The memorandum questioned the validity of the consents

executed by Brooks for tax years 1983, 1984, and 1985, concluding

that Brooks had not been properly designated as the TMP and,

accordingly, lacked the authority to execute the consents.

     On August 15, 1991, MBFL filed a protest with the IRS,

claiming that the period of limitations for assessment had expired

for tax years 1983, 1984, and 1985 because Brooks lacked the

authority to execute the consent forms extending the period of

limitations. On December 26, 1991, the Commissioner mailed notices

of final partnership administrative adjustment for years 1983

through 1986.    MBFL filed a petition in the Tax Court contesting

the adjustments on their merits and on the basis that the period of

limitations    had   expired   for   years   1983   through   1985.   MBFL

subsequently conceded the merits of the adjustments, leaving only

the issue of whether the adjustments were barred by limitations.

On May 17, 1993, the Tax Court held a trial.         On January 31, 1994,

the Tax Court ruled that the consents executed by Brooks were

effective and, therefore, the period of limitations for tax years

1983, 1984, and 1985 had not expired.         MBFL filed a timely notice

of appeal.



                                     II.

     The statutory period for assessing any income tax attributable

to partnership items for a partnership's tax year expires three

years after the partnership files its partnership information

return or three years after the last day for filing such return,


                                      5
whichever is later.      I.R.C. § 6229(a).     Section 6229(b)(1)(B),

however, permits extension of that time "with respect to all

partners, by an agreement entered into by the Secretary and the tax

matters partner (or any other person authorized by the partnership

in writing to enter into such an agreement)."         The parties both

agree that for the periods relevant to this appeal, Brooks was not

the TMP.    See id. § 6231(a)(7) (defining TMP).     Thus, the issue is

whether the partnership authorized Brooks in writing to execute the

consents. While there was no specific agreement authorizing Brooks

to execute the consents, the Tax Court concluded that MBFL's

partnership agreement provided the requisite writing and that

Brooks' authority under that agreement encompassed execution of the

consents.    We disagree.

     We first consider whether Brooks' status as a general partner

in MBFL vested him with either actual or apparent authority to

execute the consents extending the limitations period.        Second, we

address the Commissioner's argument that MBFL should be estopped

from disclaiming Brooks' authority as the TMP.

                                    A.

     In order to vest Brooks with actual authority to sign the

consents, the partnership had to have executed a document providing

Brooks with that authority.     I.R.C. § 6229(b)(1)(B).      A number of

Tax Court cases have held that a partnership agreement is a

sufficient    writing   under   §   6229(b)(1)(B).     See    Georgetown

Petroleum-Edith Forrest v. Commissioner, 67 T.C.M. (CCH) 1952

(1994); Iowa Investors Baker v. Commissioner, 64 T.C.M. (CCH) 611


                                    6
(1992); Cambridge Research & Dev. Group v. Commissioner, 97 T.C.

287   (1991).         In   the     above    cases,      however,   the     partnership

agreements expressly granted the general partners broad authority

to act for the partnership. In Iowa Investors, for example, the

partner that signed the consents had the authority to "'manage all

partnership affairs, including . . . tax services . . . on behalf

of the partnership to individual partners.'"                         64 T.C.M. 611.

Similarly, in Cambridge Research, the general partners, one of whom

signed the contested consent, were authorized to "'manage and

conduct the Partnership business. They may, for the furtherance of

the business of the Partnership, borrow or lend money and pledge,

mortgage, sell, assign, license or otherwise dispose of any or all

of the Partnership property and in general take any action or do

anything in furtherance of the partnership business.'"                      97 T.C. at

289   (emphasis       added   by    Tax    Court).        Finally,    in    Georgetown

Petroleum,      the    partnership         agreement     authorized      the    general

partner, who executed the consent form, "to make such tax elections

and determinations as appear to be appropriate, and grant[ed] the

general partner exclusive management and control of the business of

the Partnership."          67 T.C.M. 1952.

      MBFL's partnership agreement, by contrast, does not contain a

broad   grant    of    authority      to    any    individual      general     partner.

Indeed, there was significant trial testimony that general partners

were not permitted individually to make decisions binding on the

partnership.          Section      2.01    of     the   first   amendment       to   the

partnership agreement states:


                                             7
          The overall management and control of the business and
     affairs of the Partnership shall be vested in the Managing
     General Partner and the Management Committee consisting of the
     Managing General Partner and the General Partners, all of whom
     will be collectively referred to as "The Management". The
     Management will act collectively on all decisions with respect
     to the management and control of the Partnership and their
     actions shall be binding on the Partnership and all Partners
     provided that they act within the scope of their authority as
     granted by these partnership articles.

     Below, MBFL argued that because the only way in which the

general partners were authorized to act was collectively and

because    Brooks'   signing   of    the   consents   did   not    meet       this

requirement, the consents were invalid.          The Tax Court disagreed.

It read section 2.01 in conjunction with Article VII of the

partnership agreement and with Louisiana law. Under Louisiana law,

a general partner is a mandatary and may bind the partnership for

actions taken within the ordinary course of business.                   La. Civ.

Code Ann. art. 2814 (West 1994).           Article VII of the partnership

agreement restricts the authority of MBFL's general partners.

Under that article, a general partner may not, without the approval

of the management:

          (a) Assign, transfer, pledge, compromise, or release any
     of its claims or debts, except upon payment in full, or
     arbitrate or consent to arbitration of any of its disputes or
     controversy;

          (b) Borrow money in the Partnership name or use
     collateral owned by the Partnership as security for loans
     except as provided in Article II Section 2.01 hereof;

          (c) Lease or mortgage any Partnership real estate or
     interest therein or enter into any contract for such purposes.

     The   Tax   Court   concluded    that    since   Article     VII    of    the

partnership agreement restricted a general partner's mandatary

authority under only three circumstances, section 2.01's collective

                                      8
decision making mandate applied only to those three circumstances.

If this is true, then section 2.01 cannot be the source in the

partnership   agreement   of   a   grant   of    general   authority   to   an

individual general partner for matters outside the scope of Article

VII.

       Even if we were to disagree with the Tax Court and adopt the

view that section 2.01 applied to decisions beyond the scope of

Article VII, the partnership agreement still could not be read as

granting broad authority to any single general partner. Under this

view, section 2.01 would instead require collective decision making

for all decisions concerning the "management and control of the

business and affairs of the Partnership."2

       The only remaining source of actual authority that would

permit Brooks, as a general partner, to bind the partnership is

found in article 2814 of the Louisiana Civil Code.           This provision

grants agency authority to general partners acting in the ordinary

course of the partnership's business.           A statute, however, is not

a sufficient written authorization.         See I.R.C. § 6229(b)(1)(B)


       2
          The foregoing analysis would not change if the second
amendment to the partnership agreement were found to be valid. The
second amendment does not purport to amend Article VII; nor does it
broadly grant authority to any single general partner:

            The overall management and control of the business and
       affairs of the Partnership shall be vested in the Management
       Committee comprised of five (5) General Partners serving one
       (1) year terms.        The Management Committee will act
       collectively on all decisions with respect to the management
       and control of the Partnership and its actions shall be
       binding on the Partnership and all Partners provided that they
       act within the scope of their authority as granted by these
       partnership articles.

                                     9
(consent may be executed by "any other person authorized by the

partnership in writing to enter into such an agreement") (emphasis

added).

                                       B.

      The Tax Court held that Louisiana law "empower[s] every

general partner of a Louisiana partnership with the authority to

bind the partnership when dealing with a third party in all

transactions     (other     than     those     transactions    involving     the

alienation, lease, or encumbrance of the partnership immovables),

where a partner makes a manifestation of his authority to bind the

partnership and the third party relies, in good faith, on the

partner's purported authority."             We find this reliance on Brooks'

apparent authority to be unavailing.

      When a person other than the partnership's TMP is executing a

consent to extend the limitations period, § 6229(b)(1)(B) requires

that person to be authorized in writing by the partnership to

execute the consent. As discussed above, the partnership agreement

does not vest Brooks with actual authority to sign the consents.

Nor   do   we   find   in   the    record    any   written   document   by   the

partnership that would vest Brooks with the apparent authority to

execute the consents.       See Restatement (Second) of Agency § 8 cmt.

a (1958) ("Apparent authority results from a manifestation by a

person that another is his agent, the manifestation being made to

a third person and not, as when [actual] authority is created, to

the agent."); see also Independent Fire Ins.            Co. v. Able Moving &




                                       10
Storage Co., 650 So. 2d 750, 752 (La. 1995) (applying Restatement

(Second) of Agency § 8).

                                     C.

      For the first time on appeal, the Commissioner contends that

MBFL is estopped from arguing that Brooks was not its TMP.            In

order for equitable estoppel to apply, the government must show

that MBFL was aware of the facts, that MBFL intended the IRS to act

on its representation that Brooks was the TMP, that the government

did not know of the facts, and that the government reasonably

relied on MBFL's representations to its substantial detriment. See

Keado v. United States, 853 F.2d 1209, 1217-18 (5th Cir. 1988)

(quoting Moody v. United States, 783 F.2d 1244, 1246 (5th Cir.

1986)).

      Section 6231(a)(7), in relevant part, provides that "[t]he

[TMP] of any partnership is . . . the general partner designated as

the   tax   matters   partner   as   provided   in   regulations."3   The

regulations, promulgated March 5, 1987, provide that the TMP is

designated when, among other things, a designation is filed with

the IRS.    See Treas. Reg. § 301.6231(a)(7)-1T (if designation is

made at the time return is filed, designation is on or attached to

the partnership return; otherwise, statement designating TMP is

filed at the service center in which the partnership return was

filed).

      3
          The parties stipulated that Gerald Stevens was the
largest shareholder. Thus, the IRS could not have been relying on
the statutory provision that states that in the absence of a
designation, the partner with the largest profits interest is the
TMP. See I.R.C. § 6231(a)(7)(B).

                                     11
     Because any designation of a TMP would be filed with the IRS

itself, the IRS cannot reasonably rely on the representations of a

third party as to the identity of a TMP.                 Cf. Herrington v.

Commissioner, 854 F.2d 755, 758 (5th Cir. 1988) (duty of taxpayer

to report consistently "does not apply when the inconsistency

concerns a pure question of law and both the taxpayer and the

Commissioner had equal access to the facts"), cert. denied, 490

U.S. 1065 (1989); see also Lewis v. Commissioner, 18 F.3d 20, 26

(1st Cir. 1994) ("[T]he misstatement must be one on which the

government    reasonably   relied.")    (emphasis    added).      Thus,    the

Commissioner's    estoppel   argument    applies    to   only   one   of   the

consents executed by Brooks.     On April 8, 1986, Brooks executed a

consent for the tax year 1983.           At that time, there was no

regulation dictating the way in which a partnership designated its

TMP. The fact that estoppel applies to that consent, however, does

not change the result in this case.           The 1986 consent merely

extended the limitations period to December 31, 1987 for tax year

1983.   Subsequent consents extended that period to December 31,

1991.   The final partnership administrative adjustment was issued

on December 26, 1991, far beyond the valid consent's extension

date.



                                  III.

     The final issue in this appeal was raised by the Commissioner

and is not contested by the parties.         The assessments for 1983,

1984,   and   1985   involve   reduction     of     claimed     depreciation


                                   12
deductions.   In 1986, MBFL sold its assets and based its report of

long-term capital gains on the pre-assessment bases of the assets.

When the Tax Court found that the statute of limitations had not

run and that the assessments were permitted, it also found that

MBFL had concomitantly lower long-term capital gains and was

entitled to a reduction in its 1986 tax liability.          Because we

conclude   that   the   assessments    are   barred,   MBFL's   claimed

depreciation deductions do not change, the bases of MBFL's assets

do not change, and any long-term capital gain treatment resulting

from the sale of those assets does not change.



                                 IV.

     For the foregoing reasons, we REVERSE the judgment of the Tax

Court and RENDER judgment for MBFL.




                                 13
