                        T.C. Memo. 2003-28



                      UNITED STATES TAX COURT



          NEW YORK FOOTBALL GIANTS, INC., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent*



     Docket No. 8563-00.               Filed January 30, 2003.



     Michael A. Guariglia, for petitioner.

     John M. Altman, for respondent.



                 SUPPLEMENTAL MEMORANDUM OPINION


     COLVIN, Judge:   This matter is before the Court on

petitioner’s motion to certify for interlocutory appeal pursuant

to section 7482(a)(2) and Rule 193 certain issues decided in our

Opinion in N.Y. Football Giants, Inc. v. Commissioner, 117 T.C.


     *
        This Memorandum Opinion supplements N.Y. Football Giants,
Inc. v. Commissioner, 117 T.C. 152 (2001).
                                 - 2 -

152 (2001), and our September 4, 2002, order denying petitioner’s

motion for reconsideration.

     Section references are to the Internal Revenue Code as in

effect for the years in issue.    Rule references are to the Tax

Court Rules of Practice and Procedure.

                              Background

     In N.Y. Football Giants, Inc. v. Commissioner, supra at 158,

we held that the built-in gains tax is a subchapter S item that

must be determined in a TEFRA proceeding for an S corporation and

that we lack jurisdiction as to petitioner’s tax years 1996 and

1997.   We granted respondent’s motion to dismiss for lack of

jurisdiction and to strike petitioner’s tax years 1996 and 1997,

and denied petitioner’s cross-motion to dismiss for lack of

jurisdiction as to petitioner’s tax year 1997 as barred by the

statute of limitations.   By subsequent order denying petitioner’s

motion for reconsideration, we rejected petitioner’s contention

that the tax matters person (TMP) lacks standing to engage in

litigation on behalf of an S corporation both as untimely and on

the merits.   We also rejected petitioner’s contention that

respondent is estopped from denying that the built-in gains tax

is a subchapter S item because:    (1) Equitable estoppel is an

affirmative defense that must be pleaded, and petitioner did not

plead estoppel; and (2) estoppel does not apply to
                               - 3 -

representations of law, and respondent’s interpretations of the

TEFRA statute were statements of law.

                            Discussion

     Petitioner asks us to certify for immediate appeal the

following questions for tax years 1996 and 1997:   (1) Whether the

built-in gains tax is a subchapter S item with respect to an S

corporation; (2) whether assessments against an S corporation may

be determined in a TEFRA proceeding; (3) whether a TMP has

standing to sue the Commissioner on behalf of an S corporation;

(4) whether respondent is estopped to deny that the built-in

gains tax is not a subchapter S item with respect to petitioner

as an S corporation; and (5) whether petitioner raised issues (3)

and (4) in a proper and timely manner.

     Only exceptional circumstances justify a departure from the

policy of postponing appellate review until after entry of final

judgment.   Coopers & Lybrand v. Livesay, 437 U.S. 463, 475

(1978); Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d

Cir. 1990); Gen. Signal Corp. v. Commissioner, 104 T.C. 248, 251

(1995), affd. 142 F.3d 546 (2d Cir. 1998).   Section 7482(a)(2)

was not intended to provide early review of adverse rulings.

Gen. Signal Corp. v. Commissioner, supra at 253-254.   We certify

an interlocutory order for an immediate appeal only if:   (1) A

controlling question of law is present; (2) substantial grounds

for difference of opinion are present; and (3) an immediate
                                 - 4 -

appeal from the order may materially advance the ultimate

termination of the litigation.    Sec. 7482(a)(2)(A); Rule 193.

Failure to meet any of the three requirements is grounds for

denial of certification.    Gen. Signal Corp. v. Commissioner,

supra at 251; Kovens v. Commissioner, 91 T.C. 74, 77 (1988),

affd. without published opinion 933 F.2d 1021 (11th Cir. 1991).

For reasons discussed next, we deny petitioner’s motion.

A.     Whether Controlling Questions of Law Are Presented

       A controlling question of law is “more than a question which

if decided erroneously would lead to a reversal on appeal but

entails a question of law which is serious to the conduct of the

litigation.”    Kovens v. Commissioner, supra at 79; see Katz v.

Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974).      We agree

with petitioner that the built-in gains and TEFRA issues present

controlling questions of law, but we disagree that the standing,

estoppel, and timeliness issues present controlling questions of

law.    Our denial of petitioner’s standing and estoppel arguments

because they were untimely and not properly pleaded was within

our discretion.    Matters within the discretion of a trial court

generally are not certifiable as controlling questions of law.

Pollock & Riley, Inc. v. Pearl Brewing Co., 498 F.2d 1240, 1246

(5th Cir. 1974) (rulings relating to the sufficiency of

pleadings, pretrial rulings as to the admissibility of evidence,
                               - 5 -

and rulings on discretionary matters are not ordinarily

certifiable).

B.   Whether Interlocutory Appeal of These Issues Will Materially
     Advance the Ultimate Termination of This Case

     Petitioner contends that the immediate resolution of the

built-in gains jurisdictional and TEFRA issues relating to its

1996 and 1997 tax years may preclude a trial of the built-in

gains tax issue in the wrong proceeding, avoid unnecessary TEFRA

proceedings, and assure petitioner that it is proceeding in the

proper action.   Petitioner does not contend that immediate appeal

of those issues will materially advance termination of litigation

in this case or reduce litigation costs.   We conclude that

immediate appeal of the issues in this case will not materially

advance the ultimate termination of this case.

     Petitioner now has three cases docketed in the Tax Court:

(1) N.Y. Football Giants, Inc. v. Commissioner, docket No. 8563-

00, involving petitioner’s 1998 tax year;1 (2) N.Y. Football

Giants, Inc., John K. Mara, Tax Matters Person v. Commissioner,

docket No. 10391-01, involving the Final S Corporation

Administrative Adjustment (FSAA) on which the TEFRA case is

based, relating to petitioner’s 1996 and 1997 tax years; and (3)

N.Y. Football Giants, Inc. v. Commissioner, docket No. 15105-02,



     1
        We dismissed for lack of jurisdiction petitioner’s 1996
and 1997 tax years in N.Y. Football Giants, Inc. v. Commissioner,
supra.
                               - 6 -

involving petitioner’s 1996 and 1997 tax years.2   The issues and

facts relating to the merits of the built-in gains tax issue for

tax years 1996 and 1997 are the same for tax year 1998.

     It is typically preferable to try all issues raised in a

case in one proceeding to avoid piecemeal and protracted

litigation.   Markwardt v. Commissioner, 64 T.C. 989, 998 (1975);

Haft Trust v. Commissioner, 62 T.C. 145, 147 (1974), affd. on

this issue 510 F.2d 43, 45 n.1 (1st Cir. 1975).    We believe that,

because the issues and facts for tax years 1996 and 1997 are the

same for tax year 1998, and because all 3 years are currently

docketed in this Court, consolidation of petitioner’s three cases

for trial on the built-in gains tax issue may make it easier to

resolve these cases expeditiously and preserve all issues for

appeal.   An interlocutory appeal of the built-in gains

jurisdictional and TEFRA issues may delay the trial of the issues

in this case, and would not expedite or advance it, because an

immediate appeal will not dispose of the factually distinct

built-in gains tax issue present in all 3 years (and all three

docketed cases).   Gen. Signal Corp. v. Commissioner, supra at

253-254; see Estate of Egger v. Commissioner, 92 T.C. 1079, 1082



     2
        Petitioner filed an election in docket No. 10391-01 to
convert its S corporation items for tax years 1996 and 1997 to
non-S corporation items. Respondent subsequently issued a notice
of deficiency to petitioner for tax years 1996 and 1997. The
petition in docket No. 15105-02 is based on that notice of
deficiency.
                                 - 7 -

(1989) (certification will not materially advance the ultimate

termination of the case if an issue will remain after

interlocutory appeal).

     We conclude that the instant case is not an exceptional

circumstance which warrants interlocutory appeal.

     To reflect the foregoing,

                                         An appropriate order will

                                 be issued.
