                                               WISE GUYS HOLDINGS, LLC, PETER J. FORSTER, TAX
                                                MATTERS PARTNER, PETITIONER v. COMMISSIONER
                                                     OF INTERNAL REVENUE, RESPONDENT

                                                        Docket No. 6643–12.                        Filed April 22, 2013.

                                                  R mailed to P, as W’s tax matters partner (TMP), a notice
                                               of final partnership administrative adjustment (FPAA) for W’s
                                               2007 taxable year. Approximately nine months later, R
                                               (through an office different from the office that mailed the
                                               FPAA) mailed to P, as W’s TMP, a second FPAA for W’s 2007
                                               taxable year. The first FPAA and the second FPAA are
                                               similar in content but are different in the contact information
                                               (and a few other minor items) shown on the face. P filed his
                                               petition in response to the second FPAA but after the statu-
                                               tory deadline for challenging the first FPAA had expired.
                                               Held: The second FPAA is invalid (and thus disregarded)
                                               because I.R.C. sec. 6223(f) precluded R from properly mailing
                                               the second FPAA to P. The Court lacks jurisdiction to decide
                                               this case because the petition was not filed timely as to the
                                               first FPAA.

                                           Peter J. Forster, pro se.
                                           Joy E. Gerdy Zogby and Paul T. Butler, for respondent.
                                                                                   OPINION

                                         THORNTON, Judge: This is a partnership-level proceeding
                                      under the Tax Equity and Fiscal Responsibility Act of 1982
                                      (TEFRA), Pub. L. No. 97–248, sec. 402(a), 96 Stat. at 648. 1
                                      Petitioner commenced this case on March 12, 2012, by filing
                                      with the Court a petition allegedly pursuant to section
                                      6226(a)(1) or (b)(1). 2 Petitioner is the tax matters partner
                                      (TMP) of Wise Guys Holdings, LLC (WGH), and this case
                                      concerns WGH’s 2007 taxable year.
                                         Respondent moves to dismiss this case for lack of jurisdic-
                                      tion, asserting that the petition was not filed timely within
                                           1 Subsequent
                                                      section references are to the applicable versions of the In-
                                      ternal Revenue Code.
                                        2 Pursuant to an order of this Court dated March 15, 2012, petitioner

                                      subsequently filed an amended petition on April 17, 2012.

                                                                                                                                   193




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                                      194                 140 UNITED STATES TAX COURT REPORTS                                   (193)


                                      the 90-day or 60-day period of section 6226(a)(1) and (b)(1),
                                      respectively. Respondent notes that on March 18, 2011, a
                                      notice of final partnership administrative adjustment (FPAA)
                                      for WGH’s 2007 taxable year was mailed to petitioner in his
                                      capacity as WGH’s TMP and that the petition was not filed
                                      until approximately one year later. Petitioner objects to
                                      respondent’s motion. Petitioner asserts that the petition was
                                      filed timely in response to a second FPAA for WGH’s 2007
                                      taxable year mailed to petitioner (in his capacity as WGH’s
                                      TMP) on December 6, 2011. Neither party asserts, nor does
                                      the record show, that the second FPAA was mailed on
                                      account of ‘‘fraud, malfeasance, or misrepresentation of a
                                      material fact’’ within the meaning of section 6223(f).
                                         We hold that the second FPAA is invalid (and thus dis-
                                      regarded) because section 6223(f) precluded respondent from
                                      properly mailing the second FPAA to petitioner. Because the
                                      petition was not filed timely as to the first FPAA, the Court
                                      lacks jurisdiction to decide the case and accordingly will dis-
                                      miss it.

                                                                               Background
                                      I. Introduction
                                         Neither party requested a hearing, and we conclude that
                                      none is necessary to decide respondent’s motion to dismiss.
                                      For the sole purpose of deciding that motion, we draw the fol-
                                      lowing background information from petitioner’s allegations
                                      in the amended petition, from the uncontroverted statements
                                      in respondent’s motion to dismiss (including the exhibits
                                      attached thereto), and from the exhibits attached to peti-
                                      tioner’s objection to respondent’s motion to dismiss.
                                         The record does not definitively establish the location of
                                      WGH’s principal place of business when the petition was
                                      filed. Petitioner alleged in his amended petition that WGH’s
                                      principal place of business was in Virginia (apparently at the
                                      time of the amended petition).
                                      II. Background Information
                                         On March 18, 2011, an Internal Revenue Service (IRS)
                                      office in Hartford, Connecticut, mailed to petitioner, in his
                                      capacity as WGH’s TMP, two copies of an FPAA (first FPAA)
                                      relating to WGH’s 2007 taxable year. One copy was sent by




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                                      (193)             WISE GUYS HOLDINGS, LLC v. COMMISSIONER                                   195


                                      certified mail to petitioner at WGH’s last known address in
                                      Manassas, Virginia, and was delivered there three days later.
                                      The other copy was sent by certified mail to petitioner at his
                                      last known address in Great Falls, Virginia, and was deliv-
                                      ered there on March 29, 2011. The face of the first FPAA
                                      lists ‘‘March 18, 2011’’ in a section entitled ‘‘Date FPAA
                                      Mailed to Tax Matters Partner’’ and states that questions
                                      may be directed to a named IRS employee (K.M.P.) at a
                                      listed address or phone number in Connecticut. The mailing
                                      to the Manassas address included a five-page examination
                                      report not included in the mailing to the Great Falls address.
                                      The face of the first FPAA explains that the Commissioner
                                      sends an examination report only to the TMP and that any
                                      other partner should contact the TMP to get a copy of the
                                      examination report.
                                         On December 6, 2011, an IRS office other than the Hart-
                                      ford office mailed to petitioner, in his capacity as WGH’s
                                      TMP, a copy of another FPAA (second FPAA) relating to
                                      WGH’s 2007 taxable year. 3 This copy was addressed to peti-
                                      tioner at the same Great Falls address mentioned above and,
                                      unlike the first FPAA, bears no certified mail stamp or cer-
                                      tified mail number. Also on December 6, 2011, a revenue
                                      agent (K.D.) in an IRS office in Fairfax, Virginia, mailed to
                                      petitioner’s representative (at his address, pursuant to a
                                      power of attorney or other authorization that the IRS had on
                                      file) another copy of the second FPAA. K.D. included in the
                                      mailing to the representative a one-page cover letter stating
                                      that a ‘‘Report’’ was enclosed and that the representative
                                      could call K.D. at her listed Virginia phone number with any
                                      question. The face of the second FPAA lists no date in the
                                      section entitled ‘‘Date FPAA Mailed to Tax Matters Partner’’
                                      and states that questions may be directed to a named IRS
                                      employee (L.S.B.) at his listed address or phone number in
                                      Pennsylvania. 4
                                         The first FPAA and the second FPAA are similar in con-
                                      tent but are different in the contact information (and a few
                                        3 The first FPAA specifically lists the mailing address of the IRS office

                                      which mailed that FPAA. The second FPAA does not do similarly. The
                                      faces of the FPAAs indicate that they were mailed by different IRS offices.
                                        4 While the second FPAA states that questions may be directed in writ-

                                      ing to L.S.B. at his address listed on the heading of the FPAA, no such
                                      address is listed.




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                                      196                 140 UNITED STATES TAX COURT REPORTS                                   (193)


                                      other minor items) shown on the face. The second FPAA does
                                      not set forth any partnership-level adjustment or determina-
                                      tion that is not listed in the first FPAA.
                                         Petitioner attached the second FPAA to his petition under-
                                      lying this case. Petitioner also attached the second FPAA to
                                      his amended petition.

                                                                                Discussion
                                         Petitioner seeks through his petition, as amended, to
                                      pursue in this Court a partnership-level proceeding under
                                      TEFRA. This Court’s jurisdiction over a TEFRA partnership-
                                      level proceeding is invoked upon the Commissioner’s mailing
                                      of a valid FPAA and the proper filing of a petition for
                                      readjustment of partnership items for the year or years to
                                      which the FPAA pertains. See Harbor Cove Marina Partners
                                      P’ship v. Commissioner, 123 T.C. 64, 78 (2004). A TMP gen-
                                      erally has 90 days after the mailing of a valid FPAA to file
                                      a petition for readjustment of the partnership items covered
                                      by the FPAA. See sec. 6226(a); PCMG Trading Partners XX,
                                      L.P. v. Commissioner, 131 T.C. 206, 207 (2008). If the TMP
                                      does not timely file such a petition within that 90-day period,
                                      then any ‘‘notice partner’’ and any ‘‘5-percent group’’ may file
                                      a petition for readjustment of the partnership items within
                                      the 60-day period that follows the close of the 90-day period.
                                      See sec. 6226(b)(1); PCMG Trading Partners XX, L.P. v.
                                      Commissioner, 131 T.C. at 207–208; see also sec. 6231(a)(8),
                                      (11) (respectively defining the terms ‘‘notice partner’’ and ‘‘5-
                                      percent group’’). The Court lacks jurisdiction to decide a
                                      TEFRA proceeding that is commenced after the 150-day
                                      period consisting of the just-mentioned 90-day and 60-day
                                      periods. See Barbados #6, Ltd. v. Commissioner, 85 T.C. 900
                                      (1985).
                                         The parties do not dispute that petitioner’s petition was
                                      not filed timely as to the first FPAA or that it was filed
                                      timely as to the second FPAA. They dispute whether the
                                      second FPAA was valid so that a petition could be properly
                                      filed with respect to it. Respondent argues that the second
                                      FPAA was invalid pursuant to section 6223(f). Under that
                                      section, ‘‘If the Secretary mails a notice of final partnership
                                      administrative adjustment for a partnership taxable year
                                      with respect to a partner, the Secretary may not mail




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                                      (193)             WISE GUYS HOLDINGS, LLC v. COMMISSIONER                                   197


                                      another such notice to such partner with respect to the same
                                      taxable year of the same partnership in the absence of a
                                      showing of fraud, malfeasance, or misrepresentation of a
                                      material fact.’’ Sec. 6223(f). Petitioner counters in his objec-
                                      tion to respondent’s motion that he filed his petition in ‘‘good
                                      faith’’ in response to the second FPAA and he cannot be
                                      faulted for respondent’s mailing of that document or for
                                      relying on that document as ‘‘presumably valid’’. Petitioner
                                      adds in his objection to respondent’s motion that the audit
                                      underlying this case was an ‘‘arduous process’’, that he has
                                      been ‘‘frustrated throughout this process due to the lack of
                                      communication’’ with respondent, and that ‘‘fairness and jus-
                                      tice’’ dictate that the Court not dismiss this case ‘‘on a tech-
                                      nicality that the second FPAA was not valid because one had
                                      already been sent’’.
                                         We agree with respondent that the Court must dismiss
                                      this case for lack of jurisdiction because of the absence of a
                                      timely petition. While neither party has cited any case
                                      directly on point, we are mindful of the related law
                                      applicable to the mailing of two notices of deficiency. Section
                                      6212(c) generally provides that, if the Secretary has mailed
                                      to the taxpayer a notice of deficiency and the taxpayer timely
                                      petitions the Court with respect thereto, the Secretary shall
                                      have no right to mail a further notice of deficiency to the tax-
                                      payer for the same taxable year. In McCue v. Commissioner,
                                      1 T.C. 986 (1943), the Court construed a predecessor of that
                                      section, namely, section 272(f) of the Internal Revenue Code
                                      of 1939. 5 There, the Commissioner mailed a notice of trans-
                                      feree liability to a taxpayer, and the taxpayer timely peti-
                                      tioned the Court with respect to the notice. See McCue v.
                                      Commissioner, 1 T.C. at 987. Before the petition was filed,
                                           5 Former     sec. 272(f) provided in relevant part:
                                           SEC. 272. PROCEDURE IN GENERAL.
                                             (f) Further Deficiency Letters Restricted.—If the Commissioner has
                                           mailed to the taxpayer notice of a deficiency as provided in subsection
                                           (a) of this section, and the taxpayer files a petition with the Board with-
                                           in the time prescribed in such subsection, the Commissioner shall have
                                           no right to determine any additional deficiency in respect of the same
                                           taxable year, except in the case of fraud, and except as provided in sub-
                                           section (e) of this section, relating to assertion of greater deficiencies be-
                                           fore the Board, or in section 273(c), relating to the making of jeopardy
                                           assessments. * * *




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                                      198                 140 UNITED STATES TAX COURT REPORTS                                   (193)


                                      however, the Commissioner mailed the taxpayer a second
                                      notice of transferee liability with respect to the same
                                      liability. See id. The taxpayer petitioned the Court with
                                      respect to the second notice. See id. The Court dismissed the
                                      second action, stating that the taxpayer had no right to file
                                      the second petition because former section 272(f) precluded
                                      the Commissioner from mailing the second notice as a valid
                                      notice. See id. at 988; cf. Kiker v. Commissioner, 218 F.2d
                                      389, 393 (4th Cir. 1955) (stating that a second deficiency
                                      notice issued for a taxable year was not invalid under former
                                      section 272(f) because, among other reasons, it determined
                                      an additional deficiency on account of fraud); Rowan Cotton
                                      Mills Co. v. Commissioner, 140 F.2d 277 (4th Cir. 1944)
                                      (holding that a second deficiency notice issued for a taxable
                                      year was valid where it determined a deficiency in a different
                                      type of tax than did the earlier deficiency notice), aff ’g on
                                      this issue 1 T.C. 865 (1943). 6 Later, in Stamm Int’l Corp. v.
                                      Commissioner, 84 T.C. 248, 252 (1985), the Court cited
                                      McCue in support of the Court’s conclusion that ‘‘A valid peti-
                                      tion is the basis of the Tax Court’s jurisdiction. To be valid,
                                      a petition must be filed from a valid statutory notice.’’ Accord
                                      Lone Star Life Ins. Co. v. Commissioner, T.C. Memo. 1997–
                                      465 (holding that a notice of deficiency was invalid where it
                                      was the second notice mailed for that year and the taxpayer
                                      timely petitioned the Court as to the first notice).
                                         Petitioner seeks to invoke the Court’s jurisdiction to decide
                                      this case, which means that he bears the burden of proving
                                      that the Court has jurisdiction to decide the case. See David
                                      Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270
                                      (2000), aff ’d, 22 Fed. Appx. 837 (9th Cir. 2001); Fehrs v.
                                           6 The
                                               cases cited supra pp. 197–198 involve sec. 6212(c) or its prede-
                                      cessor, former sec. 272(f), both of which are textually similar to sec.
                                      6223(f). One notable difference, however, is that sec. 6212(c) and former
                                      sec. 272(f) generally prohibit the Commissioner from mailing an additional
                                      deficiency notice for a taxable year for which the taxpayer has timely peti-
                                      tioned the Court with respect to a previous deficiency notice. Cf. Gmelin
                                      v. Commissioner, T.C. Memo. 1988–338 (holding that former sec. 272(f)
                                      does not require that the Commissioner wait until the period for filing a
                                      petition as to a deficiency notice expires before issuing another deficiency
                                      notice as to the same taxable year), aff ’d without published opinion, 891
                                      F.2d 280 (3d Cir. 1989). Sec. 6223(f), on the other hand, generally bars the
                                      Commissioner from mailing a second FPAA to a particular partner without
                                      regard to whether a petition has been filed in this Court.




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                                      (193)             WISE GUYS HOLDINGS, LLC v. COMMISSIONER                                   199


                                      Commissioner, 65 T.C. 346, 348 (1975). In order to meet his
                                      burden of proof, petitioner must establish affirmatively all
                                      facts giving rise to the Court’s jurisdiction. See David Dung
                                      Le, M.D., Inc. v. Commissioner, 114 T.C. at 270; Wheeler’s
                                      Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180
                                      (1960). The Court’s jurisdiction is set explicitly by statute, see
                                      Neilson v. Commissioner, 94 T.C. 1, 9 (1990); Naftel v.
                                      Commissioner, 85 T.C. 527, 529 (1985); see also sec. 7442,
                                      and the Court lacks authority to apply equitable principles
                                      (e.g., estoppel) to acquire jurisdiction over a matter that the
                                      statute does not authorize the Court to decide, see Calvert
                                      Anesthesia Assocs.-Pricha Phattiyakul, M.D., P.A. v. Commis-
                                      sioner, 110 T.C. 285, 287 (1998); see also Odend’hal v.
                                      Commissioner, 95 T.C. 617, 624 (1990) (and cases cited
                                      thereat).
                                         Petitioner does not allege that he failed to receive timely
                                      notice of the beginning of the administrative proceeding
                                      underlying this case. See generally sec. 6223(e)(1)(A), (2). Nor
                                      does petitioner allege that the first FPAA was issued improp-
                                      erly or that the first FPAA was otherwise invalid. Petitioner
                                      also does not advance any reason he did not timely petition
                                      the Court in response to the first FPAA. Petitioner essen-
                                      tially points the Court to the second FPAA and asks the
                                      Court to apply equitable principles to exercise jurisdiction on
                                      the basis of the second FPAA. We decline to do so. As we
                                      have stated, whether the Court has jurisdiction to decide a
                                      TEFRA case such as this one turns not on our consideration
                                      of equitable principles but on our finding that a petition was
                                      properly filed in response to a valid FPAA. Respondent
                                      having mailed a valid FPAA, the second FPAA mailed for
                                      that same year is invalid pursuant to section 6223(f) absent
                                      a showing of ‘‘fraud, malfeasance, or misrepresentation of a
                                      material fact.’’ Petitioner has failed to make such a showing.
                                      In fact, petitioner does not even assert that respondent
                                      mailed the second FPAA on account of fraud, malfeasance, or
                                      misrepresentation of a material fact. The lack of such an
                                      assertion is not surprising. Given the resemblance of the first
                                      FPAA to the second FPAA, and the fact that the second
                                      FPAA contains no adjustment or determination other than
                                      those set forth in the first FPAA, it would seem that the
                                      mailing of the second FPAA was more the result of a mistake
                                      or a lack of communication on the part of the IRS than of




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                                      200                 140 UNITED STATES TAX COURT REPORTS                                   (193)


                                      fraud, malfeasance, or a misrepresentation of a material
                                      fact. 7 We conclude that the second FPAA is invalid, and we
                                      disregard it for purposes of deciding whether petitioner’s
                                      petition was timely filed to invoke the Court’s jurisdiction to
                                      decide this case.
                                        The petition was not filed timely as to the first FPAA.
                                      Accordingly, we will grant respondent’s motion and dismiss
                                      this case for lack of jurisdiction on the ground that a timely
                                      petition was not filed as required by section 6226(a)(1) or
                                      (b)(1). We have considered all arguments petitioner made for
                                      a contrary decision, and to the extent not discussed, we have
                                      rejected those arguments as without merit.
                                        To reflect the foregoing,
                                                           An appropriate order of dismissal will be entered.

                                                                               f




                                           7 While
                                                 the first FPAA and the second FPAA are similar in content, nei-
                                      ther is a ‘‘duplicate copy’’ of the other within the meaning of sec.
                                      301.6223(f)–1(a), Proced. & Admin. Regs. The regulations generally allow
                                      the Commissioner to issue a duplicate copy of an FPAA where, for exam-
                                      ple, the original is lost. See id.




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