                  T.C. Memo. 2005-174


                 UNITED STATES TAX COURT



         OLSEN-SMITH, LTD., SMITH-OLSEN, PLC,
          TAX MATTERS PARTNER, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No.   22081-03.           Filed July 18, 2005.



     L is a general partnership the direct partners of
which are three limited liability companies (LLCs). P
amended its petition in this TEFRA partnership-level
proceeding to allege that L’s net earnings from self-
employment (NESE) were zero instead of $627,736 as
reported or $696,807 as determined by R. P argues that
L has no “NESE”, as defined in sec. 1402(a), I.R.C.,
because neither L nor any of its partners has a partner
or member who is an individual. R moves to strike P’s
allegation, asserting that the Court lacks jurisdiction
in this proceeding to decide whether L has an indirect
partner who is an individual.
     Held: Because a determination of the ownership of
a passthrough entity that is a direct partner in a
partnership may involve information not usually
maintained by the partnership, a determination of the
members of the LLCs (and thus indirect partners of L)
is a nonpartnership item that the Court is not allowed
to decide in this TEFRA partnership-level proceeding.
                                  -2-

     Brad S. Ostroff and Martha Combellick Patrick (specially

recognized), for petitioner.

     Anne W. Durning, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   This case is a partnership-level proceeding

subject to the unified audit and litigation procedures of the Tax

Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L.

97-248, sec. 401, 96 Stat. 628.    Smith-Olsen, PLC (Smith/Olsen),

the tax matters partner of Olsen-Smith, LTD (LTD), petitioned the

Court to readjust partnership items relating to a Notice of Final

Partnership Administrative Adjustment (FPAA) issued by the

Commissioner as to LTD’s 1999 taxable year.    LTD is a general

partnership the partners of which are three passthrough entities

known as limited liability companies (LLCs).    In relevant part,

the FPAA determined that LTD’s net earnings from self-employment

(NESE) totaled $696,807, instead of $627,736 as reported, on

account of a $69,071 increase that the Commissioner made to LTD’s

ordinary income.

     Following concessions, we must decide whether we have

jurisdiction to decide the single substantive issue remaining in

dispute.   Specifically, petitioner in an amendment to petition

alleged that LTD had no NESE because neither LTD nor any of its

partners had a partner or member who was an individual.
                                 -3-

Petitioner argues that the Court’s identity of LTD’s “actual

partners” is a partnership item that is more appropriately made

in this TEFRA partnership-level proceeding than in a

partner-level proceeding because that identification may affect

the allocation of LTD’s income or loss to its partners.

Respondent moves the Court to strike petitioner’s allegation,

arguing that the Court lacks jurisdiction in a TEFRA partnership-

level proceeding to decide whether LTD had an indirect partner

who was an individual.    We agree with respondent and shall grant

his motion.

                             Background1

     LTD is a general partnership formed in 1987.    Its business

is the practice of law.    Its principal place of business was in

Phoenix, Arizona, when the petition commencing this proceeding

was filed with the Court.

     During 1999, LTD had three equal direct partners:

Smith/Olsen, Smith & Associates, PLC (Smith/Associates), and

Rossie & Associates, PLC (Rossie/Associates).     Smith/Olsen was an

Arizona professional LLC (APLLC) whose members were a complex

trust named 1992 WHO Trust (1-percent owner) and a grantor trust

named SKO-96 Trust (99-percent owner).     The grantor of SKO-96



     1
       The recitations in this Opinion are obtained from the
parties’ stipulations of fact and the exhibits submitted
therewith. We set forth these recitations solely for the purpose
of deciding respondent’s motion.
                                 -4-

Trust was Alfred J. Olsen (Olsen).     Smith/Associates was an APLLC

whose members were a complex trust named 1992 WLK Trust

(1-percent owner) and a grantor trust named MBK-96 Trust

(99-percent owner).    The grantor of MBK-96 Trust was Susan K.

Smith (Smith), Olsen’s wife.    Rossie/Associates was an APLLC with

a single member, a grantor trust named JJR-97 Trust.    The grantor

of JJR-97 Trust was James J. Rossie, Jr. (Rossie).    Olsen, Smith,

and Rossie (collectively, the three individuals) were all

attorneys who during 1999 worked for and received salaries from

LTD.    During that year, the three individuals also received

compensation from LTD in the form of fringe benefits.

       LTD filed a 1999 Form 1065, U.S. Partnership Return of

Income (1999 return), that reported that LTD realized $627,736 of

ordinary income during that year and that all of this income was

NESE.    The 1999 return also reported that LTD’s partners were

Smith/Olsen, Smith/Associates, and Rossie/Associates, but did not

provide any details as to the members of the LLCs.    In relevant

part, the Commissioner determined in the FPAA that LTD’s NESE

totaled $696,807 on account of a $69,071 increase that respondent

made to LTD’s ordinary income.    The Commissioner has since

conceded a portion of the $69,071 increase in ordinary income

(and NESE).
                                  -5-

                              Discussion

     The TEFRA partnership-level procedures prescribed in

sections 6221 through 6234 require that all challenges to

adjustments of partnership items be made in a single unified

proceeding.2    Under these procedures, “the tax treatment of any

partnership item (and the applicability of any penalty, addition

to tax, or additional amount which relates to an adjustment to a

partnership item) shall be determined at the partnership level.”

Sec. 6221.     The Commissioner generally must wait until a

partnership-level proceeding is over to assess a liability

attributable to a partnership item.     See sec. 6225(a); Maxwell v.

Commissioner, 87 T.C. 783, 788 (1986).     The Commissioner

generally must follow the deficiency procedures before assessing

a deficiency relating to a nonpartnership item such as an

affected item.     See sec. 6230(a)(2); see also sec. 6231(a)(4)

(defines a “nonpartnership item” as an item which is (or is

treated as) not a partnership item); sec. 6231(a)(5) (defines an

“affected item” as any item to the extent the item is affected by

a partnership item).

     The Court’s jurisdiction over a TEFRA partnership-level

proceeding is invoked when the tax matters partner or other

eligible partner timely files a petition with the Court seeking a


     2
       Unless otherwise indicated, section references are to the
applicable versions of the Internal Revenue Code, and Rule
references are to the Tax Court Rules of Practice and Procedure.
                                -6-

readjustment of partnership items adjusted in a valid FPAA.    See

sec. 6226; Rule 240(c); see also Meserve Drilling Partners v.

Commissioner, T.C. Memo. 1996-72, affd. 152 F.3d 1181 (9th Cir.

1998).   The Court has jurisdiction in such a proceeding to

determine partnership items to which the FPAA relates, the proper

allocation of those items among the partners, and the

applicability of any penalty, addition to tax, or additional

amount relating to an adjustment to a partnership item.   See sec.

6226(f).   We decide herein whether LTD’s reporting on its 1999

return of its ordinary income as NESE fits within this

jurisdiction or, more specifically, whether that reporting is a

partnership item.   The term “NESE” denotes:

     the gross income derived by an individual from any
     trade or business carried on by such individual, less
     the deductions allowed by this subtitle which are
     attributable to such trade or business, plus his
     distributive share (whether or not distributed) of
     income or loss described in section 702(a)(8) from any
     trade or business carried on by a partnership of which
     he is a member * * *. [Sec. 1402(a).3]

The 1999 instructions to the 1999 return generally required LTD

for purpose of that return’s Schedule K, Partner’s Shares of

Income, Credits, Deductions, etc., to report all of LTD’s

ordinary income from trade or business activities as NESE except


     3
       Sec. 702(a)(8) provides that "In determining his income
tax, each partner shall take into account separately his
distributive share of the partnership's * * * taxable income or
loss, exclusive of items requiring separate computation under
other paragraphs of this subsection."
                                 -7-

to the extent that the income was allocated to limited partners,

estates, trusts, corporations, exempt organizations, or IRAs.

See the 1999 Instructions to Form 1065, at 23-24.

     Petitioner argues that the reporting of LTD’s ordinary

income as NESE is within our jurisdiction because it is a

characterization of partnership income that is a partnership item

under section 6231(a)(3).   According to petitioner, LTD had no

NESE in that neither it nor any of its partners had a partner or

member who was an individual.    Petitioner asserts more

specifically that none of the three individuals was a partner and

asks the Court to decide the same.     Petitioner asserts that the

identity of LTD’s actual partners also may affect the allocation

of income among those partners, another indicium of a partnership

item under section 6231(a)(3).    See infra p. 11.   LTD paid

salaries and fringe benefits to the three individuals, and as

petitioner sees it, section 707 would operate to disallow LTD’s

deduction of the payroll taxes paid on the salaries and to treat

the fringe benefits as guaranteed payments, if the three

individuals were in fact partners of LTD.

     Respondent argues that the Court’s jurisdiction as to the

issue at hand is narrower than that espoused by petitioner.

According to respondent, the Court in a TEFRA partnership-level

proceeding may decide only the amount of a partnership’s NESE as

ascertained mechanically under the instructions to Form 1065.     In
                                -8-

that those instructions neither require nor permit the

consideration of any information concerning indirect partners,

respondent asserts, the Court may not in this proceeding look

through the two tiers of passthrough entities connected to LTD

and identify LTD’s indirect partners.

     We begin our analysis with section 6231(a)(3).   That section

provides that a partnership item is “any item required to be

taken into account for the partnership’s taxable year under any

provision of subtitle A to the extent regulations prescribed by

the Secretary provide that, for purposes of this subtitle, such

item is more appropriately determined at the partnership level

than at the partner level.”   Thus, in accordance with this

section, the Court will have jurisdiction over the disputed issue

(in that it will be a partnership item) if we find that a

reporting of LTD’s ordinary income as NESE is (1) an item

required to be taken into account for LTD’s 1999 taxable year

under a provision of subtitle A and (2) an item that the

regulations provide is more appropriately determined at the

partnership level than at the partner level.   We do not make

either finding.

     Subtitle A did not require that LTD determine dispositively

the amount of its ordinary income that was NESE.   Subtitle A

requires that a partnership separately state the amount of income

that may affect partners differently, or as applicable here, the
                                  -9-

amount of income that would be NESE in the hands of the ultimate

recipients if those recipients were in fact individuals.     Cf.

Hambrose Leasing v. Commissioner, 99 T.C. 298, 310 (1992).        Thus,

as to the issue at hand, LTD was excused by subtitle A (and the

1999 instructions to Form 1065) from reporting separately that

portion of its ordinary income that was not NESE because that

portion was allocated to direct partners which were limited

partners, estates, trusts, corporations, exempt organizations, or

IRAs.     See, e.g., the 1999 Instructions to Form 1065, supra at

23-24.     Whether an individual actually was a member of one or

more of the passthrough entities (LLCs) at issue, and thus was an

indirect partner of LTD, was not a determination that LTD was

required to make under subtitle A.      Where as here a partnership

interest is held by a direct partner that is an LLC, the

partnership must state that its ordinary income is NESE, without

consideration of the nature or identity of the actual or reported

owners of the LLC.     The actual taxability of the separately

stated amount as NESE, if later disputed by the Commissioner, is

then determined at the indirect partner level through an affected

item notice of deficiency issued after the TEFRA partnership-

level proceeding is complete.

        Petitioner seeks a contrary conclusion by focusing on the

definition of NESE set forth in section 1402(a).     Petitioner

notes that this definition requires the presence of an individual
                              -10-

as a direct or indirect recipient of self-employment income and

states that it knows conclusively that neither it nor any of its

partners had a member or partner who was an individual.

Petitioner concludes that LTD had no NESE within the meaning of

section 1402(a) and asserts that the Court will conclude

similarly by deciding the question of whether any of the three

individuals was an actual partner of LTD.   According to

petitioner, if the Court were to decide that one or more of the

three individuals was in fact a partner of LTD, that decision

would impact the characterization of LTD’s income, the tax

treatment of LTD’s payments to the three individuals, and the

distributive share of income and loss to LTD’s partners.

     We disagree with petitioner’s assertions and conclusions.

First, respondent has not determined that any of the three

individuals was or was not actually a partner of LTD.   Nor has

respondent taken a position in this case that is inconsistent

with the position taken by LTD on its 1999 return that none of

the three individuals was such a partner.   Petitioner is

attempting to raise in this proceeding an issue as to the

identity of LTD’s “actual partners” by requesting that the Court

rule that the three individuals’ status in LTD was as reported;

i.e., that none of the three individuals was a partner of LTD.

We view petitioner’s request that the Court decide this issue as

a request for an advisory opinion, which we decline to render.
                                -11-

We also consider it inappropriate to opine on the hypothetical

potential adjustments that respondent might propose if any of the

three individuals was in fact a partner of LTD.

     Nor do we conclude that LTD’s reporting of its ordinary

income as NESE is an item that the regulations provide is more

appropriately determined at the partnership level than at the

partner level.   Section 301.6231(a)(3)-1, Proced. & Admin. Regs.,

lists those items that are partnership items because they are

more appropriately determined at the partnership level.    In

relevant part, that list includes a partnership’s

characterization of its items of income, credit, gain, loss, or

deduction.   As discussed above, LTD was not required at the

partnership level to characterize the amount of its ordinary

income that was in fact NESE.    LTD was required at that level to

determine the entity status of its three direct partners and to

report perfunctorily its ordinary income as NESE except to the

extent that the ordinary income was allocated to a direct partner

that was a limited partner, estate, trust, corporation, exempt

organization, or IRA.   LTD was not required to determine the

identity of its indirect partners, and it was not required to

determine whether any member of those indirect partners was

itself a passthrough entity.    LTD also was not required to

determine the ultimate recipients of its ordinary income.      Each

of these matters that LTD was not required to determine had no
                               -12-

effect on LTD, its books or records, or any other aspect of the

partnership.   Cf. Hambrose Leasing v. Commissioner, supra at 311.

While petitioner argues that it believes that LTD did not have an

indirect partner who was an individual, the finding of a

partnership item does not hinge on whether the item is

determinable from information actually available at the

partnership level.   That finding turns on whether the partnership

is required to make a determination of the item.   See Dakotah

Hills Offices Ltd. Pship. v. Commissioner, T.C. Memo. 1996-35;

cf. Dial U.S.A., Inc. v. Commissioner, 95 T.C. 1, 4 (1990).

     Our conclusion as to the issue at hand is further supported

by analogy to two of this Court’s previous holdings.   First, in

Hang v. Commissioner, 95 T.C. 74, 80 (1990), the Court held that

the determination of whether a father was the true and beneficial

owner of shares in an S corporation held in the name of his sons

was properly made at the individual shareholder level.4    We

reasoned that the true and beneficial ownership of the shares was



     4
       Under the S corporation audit and litigation procedures,
secs. 6241 through 6245, a “subchapter S item” denotes “any item
of an S corporation to the extent regulations prescribed by the
Secretary provide that, for purposes of this subtitle, such item
is more appropriately determined at the corporate level”. Sec.
6245. The tax treatment of a subch. S item generally must be
determined in an entity level proceeding. See sec. 6241. While
these S Corporation procedures were enacted shortly after the
TEFRA procedures as part of the Subchapter S Revision Act of
1982, Pub. L. 97-354, sec. 4(a), 96 Stat. 1691, the S Corporation
procedures were repealed as of Dec. 31, 1996, by the Small
Business Job Protection Act of 1996, Pub. L. 104-188, sec.
1307(c)(1), 110 Stat. 1781.
                               -13-

more appropriately determined at the individual level because the

determination depended upon factors that could not be determined

at the corporate level and required participation of the

allegedly true owner of the shares.5   Id. at 80-81.

     Second, in Grigoraci v. Commissioner, T.C. Memo. 2002-202,

we applied the stated reasoning of Hang to reach a similar

result.   In Grigoraci, two partnerships were each owned by

subchapter S corporations which, in turn, were each owned by an

individual/accountant.   Respondent argued that the accountants

were the actual owners/partners of the partnerships.   We held

that we lacked jurisdiction in that TEFRA partnership-level

proceeding to decide that issue.   We noted that the issue was a

nonpartnership item in that the partnerships could not determine

whether their corporate partners should be respected for Federal

tax purposes without consideration of information that was not

available at the partnership level; e.g., information as to the

manner in which the corporations’ activities were conducted,

whether they were properly formed, whether they had valid

purposes, and whether they actually conducted business.    We also

noted that most of the evidence relevant to determining whether

the corporations or the individuals were the partners centered on



     5
       While a partnership reports its income on Form 1065, an S
corporation reports its income on Form 1120S, U.S. Income Tax
Return for an S Corporation. In contrast to Schedule K of
Form 1065, Schedule K to Form 1120S does not require that an S
corporation separately state its earnings from self-employment.
                                 -14-

the acts, motives, and intentions of the individuals and not on

actions taken by the partnerships.

     Here, as in Hang and Grigoraci, a decision as to LTD’s NESE

turns on a determination of LTD’s true and beneficial owners, and

that determination depends upon facts that may not be

determinable as the partnership level.      Petitioner attempts to

distinguish those cases by arguing that an identification of

LTD’s actual partners may affect the allocation of LTD’s income

or loss which in and of itself is an indicium of a partnership

item under section 6231(a)(3).    For the reasons stated above, we

find this attempt unavailing.

     We shall grant respondent’s motion to strike for lack of

jurisdiction.    All arguments made by the parties have been

considered, and those arguments not discussed are irrelevant or

without merit.    Accordingly,



                                             An appropriate order will

                                        be issued, and decision will

                                        be entered under Rule 155.
