                                           RAWLS TRADING, L.P., RAWLS MANAGEMENT CORPORATION,
                                                TAX MATTERS PARTNER, ET AL., 1 PETITIONERS
                                                  v. COMMISSIONER OF INTERNAL REVENUE,
                                                                RESPONDENT
                                                Docket Nos. 12937–07, 12938–07,                       Filed March 26, 2012.
                                                            14880–07.

                                                   R simultaneously issued notices of final partnership
                                                administrative adjustment (FPAAs) to two lower tier or
                                                ‘‘source’’ partnerships and one upper tier or ‘‘interim’’ partner-
                                                ship. The FPAA issued to the interim partnership purports to
                                                give effect only to the adjustments shown on the FPAAs
                                                issued to the source partnerships. Ps petitioned the Court
                                                challenging all three FPAAs, and the three partnership pro-
                                                ceedings were consolidated. R subsequently asked to stay the

                                        1 Cases of the following petitioners are consolidated herewith: Rawls Family, L.P., Rawls Man-

                                      agement Corporation, Tax Matters Partner, docket No. 12938–07; and Rawls Group, L.P., Rawls
                                      Family, L.P., Rawls Management Corporation, Jerry Rawls and the Jerry S. Rawls Business
                                      Trust, Jerry Rawls, Trustee, Partners Other Than the Tax Matters Partner, docket No. 14880–
                                      07.


                                                                                                                                    271




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                                                proceeding for the interim partnership, conceding that the
                                                underlying FPAA was issued prematurely but asserting that
                                                the FPAA is nonetheless valid and properly confers jurisdic-
                                                tion on the Court. Held: Under the analysis and reasoning
                                                articulated in GAF Corp. & Subs. v. Commissioner, 114 T.C.
                                                519 (2000), as applied to a tiered partnership structure, the
                                                FPAA issued to the interim partnership, which represents
                                                only the impact of the adjustments shown on the FPAAs
                                                issued to the two source partnerships and which was issued
                                                before the completion of the two source partnership pro-
                                                ceedings, is invalid and does not confer jurisdiction on the
                                                Court. Therefore, the Court will, on its own motion, dismiss
                                                the interim partnership proceeding for lack of jurisdiction.

                                        Michael Todd Welty, David E. Colmenero, and Laura L.
                                      Gavioli, for petitioners.
                                        Josh O. Ungerman, for petitioners in docket No. 14880–07.
                                        Elaine H. Harris, David B. Flassing, Julie Ann P. Gasper,
                                      and Mark Edward O’Leary, for respondent.
                                         VASQUEZ, Judge: These three consolidated cases are before
                                      the Court on respondent’s request to stay the proceeding in
                                      one case. The cases constitute partnership-level proceedings
                                      under the unified partnership audit and litigation procedures
                                      of the Tax Equity and Fiscal Responsibility Act of 1982
                                      (TEFRA), Pub. L. No. 97–248, sec. 402(a), 96 Stat. at 648 (codi-
                                      fied as amended at sections 6221–6233). 2
                                         Once each during two discrete periods, the first spanning
                                      late March through early April 2000 and the other covering
                                      early August through early September 2000, Jerry S. Rawls
                                      engaged in the short sale variant of the ‘‘Son-of-BOSS’’ tax
                                      shelter, 3 employing several newly formed entities. These
                                      included: Rawls Family, L.P. (Family), Rawls Group, L.P.
                                      (Group), and Rawls Trading, L.P. (Trading), each of which
                                      sought to be characterized as a partnership for tax pur-
                                      poses. 4 As more fully discussed below, these purported part-
                                         2 Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986,

                                      as amended and in effect for the tax year at issue, 2000, and all Rule references are to the Tax
                                      Court Rules of Practice and Procedure.
                                         3 See Kligfeld Holdings v. Commissioner, 128 T.C. 192 (2007) (providing a detailed description

                                      of the shelter).
                                         4 Where applicable, and for narrative convenience only, we adopt some of the terms that Mr.

                                      Rawls and others associated with these entities had used to describe the transactions at issue.
                                      Such terms include ‘‘partner(s)’’, ‘‘partnership’’, and ‘‘L.P.’’ Our use of any of these terms does
                                      not constitute, and should not be construed as, a finding that the legal status or relationship
                                      conveyed by that term in fact existed at the relevant time.




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                                      nerships were arranged in a ‘‘tiered’’ structure, with Family
                                      holding ownership interests in Group and Trading.
                                         Group and Trading were the entities in which the ‘‘shel-
                                      tering’’ transactions, which allegedly subsequently generated
                                      losses, originated. Because Group and Trading were the
                                      source of the putative losses, we refer to them as the ‘‘source’’
                                      partnerships. The claimed losses resulted from transactions
                                      overstating the bases of partnership interests in the source
                                      partnerships. These overstated bases supposedly flowed
                                      through to Family, which used them to ‘‘fabricate’’ losses.
                                      These contrived losses eventually inured to Mr. Rawls’ tax
                                      benefit through other passthrough entities. Because it was
                                      interposed between the source partnerships, on the one hand,
                                      and Mr. Rawls, on the other, we refer to Family as the
                                      ‘‘interim’’ partnership.
                                         Using this pyramid-like partnership structure, in which
                                      overstated bases purportedly achieved in the source partner-
                                      ships tiered up through the interim partnership to his ben-
                                      efit, Mr. Rawls claimed tax savings of approximately $11 mil-
                                      lion. 5 Respondent, by means of notices of final partnership
                                      administrative adjustment (FPAAs) issued to Family, Group,
                                      and Trading, disallowed the losses at the respective partner-
                                      ship level and asserted accuracy-related penalties under sec-
                                      tion 6662(a) and (h). 6 The tax matters partners (TMPs) of
                                      Family and Trading and a participating partner of Group
                                      brought these consolidated actions on behalf of their respec-
                                      tive entities.
                                         After having issued the FPAAs, respondent now contends,
                                      in effect, that the FPAA to Family was premature.
                                      Respondent has asked the Court to stay the proceeding with
                                      respect to Family until the partnership-level proceedings for
                                      Group and Trading have been resolved. The issues that we
                                      decide here are: (1) whether the Family FPAA is valid and
                                      properly confers jurisdiction on us over the Family case; and
                                         5 This figure represents the taxes that would otherwise have been owing on the long-term cap-

                                      ital gains claimed to have been sheltered by the alleged losses. As mentioned infra Findings
                                      of Fact, pt. II.A., Mr. Rawls arranged a sale of shares of common stock that he had held for
                                      several years in a company which was subsequently publicly listed and traded, at the interim
                                      partnership level. The net proceeds of this sale amounted to $61,052,041.70. Because Mr. Rawls
                                      had a negligible basis in these shares, almost the total net proceeds would have constituted
                                      long-term capital gains and been subject to a 20% tax rate. We note that Mr. Rawls’ personal
                                      income taxes are not at issue in these partnership-level proceedings.
                                         6 On March 17, 2009, the Court granted petitioners’ motion to consolidate the cases for trial,

                                      briefing, and opinion.




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                                      (2) if we have jurisdiction, whether we should grant respond-
                                      ent’s motion and stay proceedings in the Family case until
                                      we have entered our decisions in the Group and Trading
                                      cases and our decisions have become ‘‘final’’ within the
                                      meaning of section 7481(a)(2)(A).

                                                                          FINDINGS OF FACT

                                      I. Jerry S. Rawls
                                         Mr. Rawls earned a bachelor of science degree in mechan-
                                      ical engineering from Texas Tech University and a master of
                                      science degree in industrial administration from Purdue
                                      University. From 1968 through 1988 he worked for Raychem
                                      Corp., where he began as a sales engineer and eventually
                                      rose to general manager of two divisions within the company.
                                         Mr. Rawls cofounded the fiber optics company Finisar
                                      Corp. (Finisar) in 1989. Upon formation of Finisar, Mr.
                                      Rawls received a portion of its outstanding shares of common
                                      stock. Since the company’s inception, Mr. Rawls has served,
                                      variously, as Finisar’s president, chief executive officer, or
                                      chairman of the board.
                                         By 1999 Finisar had become the nation’s leading provider
                                      of fiber optic subsystems and network performance tests. On
                                      November 11, 1999, Finisar announced an initial public
                                      offering (IPO) of its common stock. On November 17, 1999,
                                      Finisar made an IPO of 8,150,000 shares. At the time of the
                                      IPO, Mr. Rawls owned 8,470,627 shares of Finisar stock,
                                      which represented 20.2% of Finisar’s outstanding common
                                      stock. 7 However, because of his position at the company, Mr.
                                      Rawls was subject to a ‘‘lock up’’ that precluded him from
                                      selling his Finisar shares in the IPO and for a six-month
                                      period thereafter.
                                         Around the time of the IPO, Mr. Rawls had no personal will
                                      or estate plan in place, he had no personal lawyers, and his
                                      Finisar holdings made up substantially all of his net worth.
                                      Between February and March 2000, Mr. Rawls was busy
                                      traveling the country in advance of an upcoming secondary
                                      offering of Finisar’s common stock, scheduled for later that
                                      spring. Mr. Rawls intended to sell approximately 600,000
                                        7 Mr. Rawls’ stock ownership in Finisar represented approximately 28% of the company’s out-

                                      standing common stock before the IPO.




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                                      (271)                RAWLS TRADING, L.P. v. COMMISSIONER                                      275


                                      shares of his Finisar common stock in this secondary
                                      offering.
                                      II. The Transactions
                                        On December 8, 1999, Steven J. Lange, a representative
                                      from the Heritage Organization, L.L.C. (Heritage), 8 made an
                                      unsolicited call to Mr. Rawls to discuss Heritage’s services.
                                      According to Mr. Lange’s summary of that call, he explained
                                      to Mr. Rawls that Heritage does ‘‘work in capital gains for
                                      large capital gains, actually eliminating the capital gains
                                      taxes and [they] do estate planning, dropping estate taxes
                                      down to 15[%]’’. Mr. Rawls agreed to meet with a Heritage
                                      representative in person. Mr. Rawls met with various Herit-
                                      age representatives several times between December 1999
                                      and early 2000.
                                        Heritage referred Mr. Rawls to Lewis, Rice, Fingerlish
                                      (Lewis Rice), a law firm to which Heritage had previously
                                      referred five clients in the preceding two years. Mr. Rawls
                                      paid Lewis Rice a fee of $150,000 for its services, which
                                      included a written tax opinion for the transactions relating
                                      to Trading. 9
                                        During March and early April 2000, Heritage and Mr.
                                      Rawls discussed strategies aimed at significantly reducing
                                      capital gains taxes that he would owe on any future sale of
                                      his Finisar stock. Initially, Heritage and Mr. Rawls con-
                                      templated a strategy seeking to ‘‘inflate’’, or overstate, the
                                      basis of Mr. Rawls’ Finisar stock before its sale.
                                        The strategy envisaged entering into a short sale of
                                      Treasury notes and transferring the proceeds of the short
                                      sale (along with the obligation to close the short sale) to a
                                      partnership. The desired tax result was an inflated ‘‘outside
                                      basis’’ in the partnership. 10 The idea was to ‘‘impute’’ this
                                         8 Heritage filed a voluntary petition for relief under ch. 11 of the Bankruptcy Code on May

                                      17, 2004. See In re Heritage Org., L.L.C., 375 B.R. 230, 238–242 (Bankr. N.D. Tex. 2007) (dis-
                                      cussing Heritage’s activities and its relationship with its clients, as conducted before the filing
                                      of the bankruptcy petition).
                                         9 In addition, on or around May 5, 2000, Mr. Rawls effectively paid a fee of $4,472,062 to Her-

                                      itage for its services. The fee was arranged through the Jerry S. Rawls Business Trust (ESBT).
                                      Mr. Rawls was the sole grantor, trustee, and beneficiary of ESBT. See infra pt. II.A.
                                         10 Outside basis refers to the basis of a partner’s partnership interest. See generally sec. 722

                                      (providing that the basis of a partner’s partnership interest acquired by the contribution of prop-
                                      erty other than money is the basis of the contributed property; and the basis of a partner’s part-
                                      nership interest acquired by the contribution of money is the amount of money contributed); sec.
                                      752(a) (providing that the basis of a partner’s partnership interest is increased to the extent
                                                                                                     Continued




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                                      inflated outside basis to Mr. Rawls’ Finisar stock before it
                                      was sold. To achieve this, Mr. Rawls would have previously
                                      arranged for a contribution of his Finisar stock to the part-
                                      nership. This stock would then have been received back in a
                                      liquidating distribution from the partnership. Presumably, it
                                      would have been claimed, under authority of section 732(b),
                                      that the Finisar stock was being received back with a basis
                                      equal to the inflated outside basis in the partnership.
                                         However, this strategy for inflating the basis of Finisar
                                      stock before its sale was subsequently discarded in favor of
                                      a more complex strategy involving two partnerships. It was
                                      envisaged that the two partnerships would eventually be
                                      arranged in a tiered structure, with one almost entirely
                                      owned by the other. The objective of this strategy was to
                                      ‘‘manufacture’’ a short-term capital loss in the upper tier
                                      partnership. The loss would then be proclaimed to be avail-
                                      able to offset capital gains that the upper tier partnership
                                      would realize by selling Finisar stock, previously contributed
                                      to it.
                                         Engineering the short-term capital loss contemplated, in
                                      the first instance, inflating the outside basis of a partner-
                                      ship—the partnership that would become the lower tier part-
                                      nership. The notion was to impute this inflated outside basis
                                      to the assets of another partnership—the partnership that
                                      would become the upper tier partnership. As a consequence
                                      of the tiered partnership structure, the erstwhile inflated
                                      outside basis in the lower tier partnership would become the
                                      overstated ‘‘inside basis’’ of assets held by the upper tier
                                      partnership. 11 These assets would comprise substantially all
                                      of the partnership interests in the lower tier partnership.
                                      of the partner’s increased share of partnership liabilities); sec. 752(b) (providing that the basis
                                      of a partner’s partnership interest is decreased to the extent of the partner’s decreased share
                                      of partnership liabilities); sec. 705 (providing rules for subsequent adjustments to the basis of
                                      a partner’s partnership interest, following its initial determination at the time of original acqui-
                                      sition, to reflect the partnership’s operating results and the partner’s distributive shares of part-
                                      nership income, gain, loss, deduction, and credit); sec. 733 (providing rules for adjustments to
                                      the basis of a partner’s partnership interest to account for distributions from the partnership
                                      to the partner).
                                         11 Inside basis refers to the partnership’s basis in partnership property. See generally sec. 723

                                      (providing that the basis of property contributed to a partnership by a partner shall be the ad-
                                      justed basis of such property to the contributing partner at the time of contribution, increased
                                      by the amount of any gain recognized at contribution); sec. 734 (providing rules for the adjust-
                                      ment of basis in partnership property to account for distributions if the partnership has made
                                      an election under sec. 754); sec. 743 (providing rules for the adjustment of basis in partnership
                                      property to account for transfers of partnership interest if the partnership has made an election
                                      under sec. 754).




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                                      The upper tier partnership would subsequently sell these
                                      partnership interests, at a price reflecting their true eco-
                                      nomic value rather than their overstated basis. A short-term
                                      capital loss would allegedly be realized as a result of this
                                      sale.
                                         As would have been the case in the discarded strategy for
                                      inflating the basis of Finisar stock, inflating the outside basis
                                      in the lower tier partnership would be achieved by entering
                                      into a short sale of Treasury notes. The proceeds of the short
                                      sale (along with the obligation to close the short sale) would
                                      be transferred to the lower tier partnership. The tiered part-
                                      nership structure itself would be effected by a purported cap-
                                      ital contribution of substantially all of the partnership
                                      interests in the lower tier partnership to the upper tier part-
                                      nership. Following this capital contribution, the upper tier
                                      partnership would hold, as assets, almost all of the partner-
                                      ship interests in the lower tier partnership. The upper tier
                                      partnership would claim, under authority of section 723, that
                                      its basis in these assets is the same as the inflated outside
                                      basis in the lower tier partnership at the time of the capital
                                      contribution.
                                         As discussed below, Mr. Rawls ended up executing the
                                      tiered partnership strategy twice; once during March and
                                      April 2000, and then again during August and September
                                      2000. A different lower tier partnership was involved each
                                      time. However, Mr. Rawls used the same upper tier partner-
                                      ship on both occasions.
                                         For purposes of resolving the jurisdictional question at
                                      hand, the proper tax characterization of each step of every
                                      transaction at issue is not necessarily critical. Instead, what
                                      matters is whether the lower tier partnerships were indeed
                                      the source of the asserted overstatement of their respective
                                      outside bases and whether the upper tier partnership was
                                      merely a conduit. Consequently, we omit, for now, many of
                                      the exact details of these extremely elaborate transactions
                                      and provide only a cursory overview, finding only such facts
                                      as bear upon the inquiry into whether we have jurisdiction
                                      over the interim partnership proceeding.




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                                           A. The Group Transactions
                                         The tiered partnership strategy was first implemented
                                      with a series of transactions that took place between March
                                      28 and April 10, 2000, in roughly the order in which they are
                                      described below.
                                         Mr. Rawls formed four entities: the Jerry S. Rawls
                                      Management Corp. (JSRMC); Rawls Management Corp. (RMC);
                                      the Jerry S. Rawls Business Trust (ESBT); and the Jerry S.
                                      Rawls Family Trust (Family Trust). 12 Mr. Rawls was the
                                      sole shareholder, president, and director of JSRMC and RMC
                                      and the grantor, trustee, and beneficiary of ESBT. Mr. Rawls
                                      contributed 1,060,000 shares of Finisar stock to ESBT. Mr.
                                      Rawls and his brother, Warren Rawls, were the grantor and
                                      trustee, respectively, of Family Trust. Family Trust’s bene-
                                      ficiaries are the descendants of Mr. Rawls’ parents, with the
                                      exception of Mr. Rawls.
                                         ESBT and RMC formed Family, which would serve as the
                                      upper tier partnership. Mr. Rawls, as trustee of ESBT, was a
                                      99.99% limited partner in Family, and RMC was a 0.01% gen-
                                      eral partner, and the sole general partner, of Family. Mr.
                                      Rawls contributed his interest in RMC to ESBT. ESBT contrib-
                                      uted the 1,060,000 shares of Finisar to Family.
                                         ESBT, through a brokerage account at Paine Webber, sold
                                      short Treasury notes with a face value of $200 million,
                                      receiving $201,326,876 in proceeds. JSRMC and ESBT formed
                                      Group, which would serve as the lower tier partnership. ESBT
                                      received a 99.99% limited partnership interest in Group in
                                      exchange for a contribution of the proceeds of the short sale
                                      and the obligation to close the short sale.
                                         On its Form 1065, U.S. Return of Partnership Income
                                      (partnership return), for the short tax year beginning April
                                      2 and ending April 6, 2000, filed February 18, 2001, Group
                                      accounted for the short sale proceeds as ESBT’s capital con-
                                      tribution. Group did not account for the obligation to close
                                      the short sale as a partnership liability under section 752(a)
                                      and (b). Thus, ESBT presumably received an inflated outside
                                         12 JSRMC and RMC each filed a Form 2553, Election by a Small Business Corporation. Re-

                                      spondent issued notices of acceptance as S corporations to JSRMC and RMC. Mr. Rawls filed
                                      an election for ESBT to be a small business trust under sec. 1361(e)(3). Respondent claims that
                                      Heritage employed an electing small business trust in its strategies to avoid having a claimed
                                      loss appear on an individual customer’s tax return. According to respondent, this minimized the
                                      likelihood that the claimed loss would be detected and challenged.




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                                      basis in Group. JSRMC received a 0.01% general partnership
                                      interest in Group in exchange for a nominal contribution and
                                      became the sole general partner of Group.
                                        ESBT then contributed its partnership interest in Group to
                                      Family. Family, presumably under authority of section 723,
                                      inherited ESBT’s inflated outside basis. The ownership struc-
                                      ture at this stage is set forth in the diagram below.




                                        JSRMC and Family then sold their respective partnership
                                      interests in Group to Family Trust. 13 Following this sale, all
                                      ownership interests in Group were held by Family Trust.
                                      Group, now presumably a ‘‘single member disregarded
                                      entity’’, 14 continued to remain liable for the obligation to
                                      close the short sale.
                                        On its partnership return for the short tax year beginning
                                      March 29 and ending December 31, 2000, filed October 16,
                                           13 Mr.
                                                Rawls subsequently sold his interest in JSRMC to Heritage.
                                           14 See
                                                secs. 301.7701–1(a)(4) (providing that ‘‘certain organizations that have a single owner
                                      can choose to be recognized or disregarded as entities separate from their owners’’), 301.7701–
                                      3(b)(1)(ii) (providing that a domestic entity is ‘‘[d]isregarded as an entity separate from its owner
                                      if it has a single owner.’’), Proced. & Admin. Regs.
                                                                                                                                              u:\files\Rawls12.eps




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                                      2001, Family claimed a loss of $202,418,954 on the sale of its
                                      partnership interest in Group to Family Trust. Almost the
                                      entire amount of this loss was the result of the overstate-
                                      ment of Family’s basis in its partnership interest in Group.
                                      This overstatement, in turn, arose from Group’s failure to
                                      account for the obligation to close the short sale.
                                        Family sold 635,297 of the 1,060,000 shares of Finisar
                                      stock that had been previously contributed to it in a sec-
                                      ondary offering, generating net proceeds of $61,052,041.70
                                      after a 3.9% commission. Family Trust then closed the short
                                      sale of the Treasury notes.
                                        Lewis Rice prepared all the documents in connection with
                                      the Group transactions. However, Lewis Rice refused to issue
                                      a ‘‘more-likely-than-not’’ opinion letter for the desired tax
                                      consequences. Lewis Rice believed that there was a greater-
                                      than-50% likelihood that the short-term loss claimed by
                                      Family on the sale of its partnership interest in Group would
                                      be disallowed under section 267. Specifically, the concern
                                      appears to have been that Family and Family Trust would
                                      be deemed ‘‘related’’ within the meaning of section 267.
                                        After discussions between Mr. Rawls and representatives
                                      from Heritage and Lewis Rice, it was decided to undertake
                                      a second set of transactions during August and September
                                      2000. These transactions replicated the Group transactions
                                      described above in a new lower tier partnership. 15 To avoid
                                      section 267 concerns, it was arranged that the partnership
                                      interests in this new lower tier partnership would be sold to
                                      a ‘‘bona fide’’ third party—an entity organized by Heritage
                                      specifically for this purpose.
                                           B. The Trading Transactions
                                        The transaction with a new lower tier partnership took
                                      place in roughly the order in which they are described below.
                                      ESBT began by contributing 5,461,679 shares of Finisar stock,
                                      previously transferred from Mr. Rawls, to Family. 16 ESBT,
                                      through a brokerage account at Donaldson, Lufkin & Jen-
                                      rette, sold short Treasury notes with a face value of $200
                                         15 Also, RMC was used as the 0.01% general partner of the new lower tier partnership. Mr.

                                      Rawls had previously sold his interest in JSRMC to Heritage, as part of the Group transactions.
                                      See supra note 13.
                                         16 The number of contributed Finisar shares represented a 3-for-1 stock split that had taken

                                      effect after the Group transactions had been completed.




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                                      (271)                RAWLS TRADING, L.P. v. COMMISSIONER                                      281


                                      million, receiving $200,449,728 in proceeds. ESBT and RMC
                                      formed Rawls Trading, L.P. (Trading), which would serve as
                                      the new lower tier partnership. ESBT received a 99.99% lim-
                                      ited partnership interest in Trading in exchange for a con-
                                      tribution of the proceeds of the short sale and the obligation
                                      to close the short sale.
                                         On its partnership return for the short tax year beginning
                                      August 17 and ending September 7, 2000, filed July 17, 2001,
                                      Trading accounted for the short sale proceeds as ESBT’s cap-
                                      ital contribution. Trading did not account for the obligation
                                      to close the short sale as a partnership liability under section
                                      752(a) and (b). Thus, ESBT presumably received an inflated
                                      outside basis in Trading. RMC received a 0.01% general part-
                                      nership interest in Trading in exchange for a nominal con-
                                      tribution and became the sole general partner of Trading.
                                         ESBT then contributed its partnership interest in Trading
                                      to Family. Family, presumably under authority of section
                                      723, inherited ESBT’s inflated outside basis. The ownership
                                      structure at this stage is set forth in the diagram below.




                                                                                                                                          u:\files\Rawls15.eps




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                                         RMC and Family sold their respective partnership interests
                                      in Trading to the West Coast Business Trust (West Coast).
                                      West Coast’s sole trustee was Gary M. Kornman, a ‘‘key’’
                                      principal at Heritage, and the individual who ostensibly con-
                                      trolled Heritage. West Coast was evidently set up for the sole
                                      purpose of accommodating the sale of partnership interests
                                      in Trading. Following this sale, all ownership interests in
                                      Trading were held by West Coast. Trading, now presumably
                                      a ‘‘single member disregarded entity’’, 17 continued to remain
                                      liable for the obligation to close the short sale.
                                         On its partnership return, Family claimed a loss of
                                      $201,951,603 on the sale of its partnership interest in
                                      Trading to West Coast. Almost the entire amount of this loss
                                      was the result of the overstatement of Family’s basis in its
                                      partnership interest in Trading. This overstatement, in turn,
                                      arose from Trading’s failure to account for the obligation to
                                      close the short sale. West Coast presumably closed the short
                                      sale of the Treasury notes.
                                         It is readily apparent from the foregoing description of the
                                      Group and Trading transactions that Group and Trading
                                      were, in fact, the source partnerships in which the overstate-
                                      ment of bases was engineered. By comparison, Family was
                                      the partnership that merely transmitted the consequences of
                                      these overstated bases to Mr. Rawls through other pass-
                                      through entities, viz, ESBT, RMC, and JSRMC. As mentioned
                                      below, respondent admits as much, and in so many words. 18
                                      Consequently, each of Group and Trading is properly
                                      characterized as a source partnership, while Family is prop-
                                      erly designated an interim partnership.
                                      III. Reporting the Transactions
                                         On October 16, 2000, Lewis Rice issued a written tax
                                      opinion to Mr. Rawls supporting the short-term capital loss
                                      claimed on Family’s partnership return on account of the
                                      Trading transactions. Mr. Rawls hired Larry Poster, a cer-
                                      tified public accountant, to prepare the tax returns for ESBT,
                                      Family Trust, Family, Group, and Trading. Mr. Poster was
                                      referred to Mr. Rawls by Heritage. Mr. Poster had previously
                                      worked on at least one other transaction with a Heritage
                                        17 See supra note 14 (citing the applicable regulations defining a ‘‘single member disregarded

                                      entity’’).
                                        18 See infra note 19 and accompanying text.




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                                      client, but had never previously received referral fees from or
                                      had a fee arrangement with Heritage. Mr. Poster character-
                                      ized the Rawls transaction as involving the ‘‘generation of
                                      losses to offset other gains’’.
                                         Mr. Poster reviewed and agreed with the Lewis Rice
                                      opinion. He advised Mr. Rawls that the short sale obligation
                                      was not a liability for purposes of section 752. He also
                                      advised Mr. Rawls that it was appropriate to report the
                                      Group losses on the Family return. Mr. Poster felt it was
                                      proper to report the losses from both transactions despite the
                                      lack of an opinion letter for the April transaction. Mr. Poster
                                      charged Mr. Rawls $3,000 to $5,000 per return prepared.
                                         As of the date of trial Mr. Rawls continued to control
                                      Family. At that time Family’s assets included shares of stock
                                      in Finisar and other companies, bonds, and private equity,
                                      mutual fund, and hedge fund holdings exceeding $67 million
                                      in value. Also, as of the date of trial Mr. Poster continued to
                                      prepare tax returns for Mr. Rawls and entities that he
                                      owned.
                                         As mentioned above, the Family, Group, and Trading part-
                                      nership returns were filed on October 16, February 18, and
                                      July 17, 2001, respectively.
                                      IV. Issuance of the FPAAs
                                         On March 9, 2007, respondent timely mailed to the respec-
                                      tive TMPs of Trading, Group, and Family FPAAs of the part-
                                      nership items of Trading for the short tax year ending Sep-
                                      tember 7, 2000 (Trading FPAA), Group for the short tax year
                                      ending April 6, 2000 (Group FPAA), and Family for the tax
                                      year 2000 (Family FPAA). On June 6, 2007, Trading’s TMP,
                                      RMC, timely filed a petition for redetermination of the part-
                                      nership items of Trading as set forth in the Trading FPAA. On
                                      June 6, 2007, RMC filed a timely petition under section
                                      6226(a) for redetermination of the partnership items of
                                      Family as set forth in the Family FPAA. On July 2, 2007, a
                                      petition for redetermination of the partnership items of
                                      Group as set forth in the Group FPAA was filed.
                                         On September 24, 2008, respondent filed a motion to stay
                                      the partner-level proceedings initiated in response to the
                                      Family FPAA. We denied respondent’s motion without preju-
                                      dice in an order of January 27, 2009. Respondent now raises




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                                      the issue for the second time on brief and adopts the same
                                      arguments contained in his motion.
                                                                                  OPINION

                                      I. We Are Obliged To Determine Whether We Have Jurisdic-
                                         tion.
                                         Neither party has questioned our jurisdiction over the
                                      Family case or disputed the validity of the Family FPAA.
                                      Respondent insists that the Family FPAA is valid and merely
                                      asks us to stay the Family case until the resolution of the
                                      Group and Trading cases. See motion to stay 1–2 (‘‘Having
                                      issued a valid, but partially premature, FPAA to Family’s
                                      partners for 2000, respondent requests the case be stayed
                                      pending the outcome of the related source partnership pro-
                                      ceedings.’’ (Emphasis supplied.)). Petitioners object to a stay
                                      and wish for a concurrent resolution of all three consolidated
                                      cases.
                                         Regardless of the parties’ seeming acquiescence on the
                                      validity of the Family FPAA, we are under an affirmative duty
                                      to investigate the extent of our subject matter jurisdiction.
                                      See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)
                                      (underlining that courts ‘‘have an independent obligation to
                                      determine whether subject-matter jurisdiction exists, even in
                                      the absence of a challenge from any party’’); United States v.
                                      Cotton, 535 U.S. 625, 630 (2002) (holding that ‘‘subject-
                                      matter jurisdiction, because it involves a court’s power to
                                      hear a case, can never be forfeited or waived’’).
                                         We are a court of limited jurisdiction, and our jurisdiction
                                      is both granted and circumscribed by statute. See sec. 7442
                                      (‘‘The Tax Court and its divisions shall have such jurisdiction
                                      as is conferred on them by this title’’); see also Pyo v.
                                      Commissioner, 83 T.C. 626, 632 (1984) (‘‘This Court is a court
                                      of limited authority and may exercise jurisdiction only to the
                                      extent expressly provided by Congress.’’). Section 6226(a)
                                      confers jurisdiction on us over a timely filed ‘‘petition for a
                                      readjustment of the partnership items’’ that the Commis-
                                      sioner had previously adjusted pursuant to a valid FPAA. Sec-
                                      tion 6223 requires the Commissioner to ‘‘mail to each partner
                                      whose name and address is furnished to * * * [him] notice[s]
                                      of * * * the beginning of an administrative proceeding at the
                                      partnership level with respect to a partnership item, and




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                                      * * * the final partnership administrative adjustment
                                      resulting from any such proceeding.’’
                                         As mentioned above, respondent had mailed the Family
                                      FPAA on March 9, 2007, and in response RMC had timely peti-
                                      tioned the Court on June 6, 2007. Prima facie, we would
                                      appear to have jurisdiction to readjust the items that
                                      respondent had adjusted in the Family FPAA. This presumes,
                                      however, that none of the adjustments shown on the Family
                                      FPAA constitutes a ‘‘computational adjustment’’ within the
                                      meaning of section 6231(a)(6). If, however, the Family FPAA
                                      merely reflects computational adjustments, then, as we show
                                      below, the issuance of this FPAA before the conclusion of the
                                      partnership-level proceedings for Group and Trading would
                                      render the FPAA ineffective for conferring jurisdiction upon
                                      us.
                                      II. Adjustments on the Family FPAA Are Computational
                                          Adjustments.
                                         Section 6231(a)(6) defines computational adjustment as
                                      ‘‘the change in the tax liability of a partner which properly
                                      reflects the treatment * * * of a partnership item.’’ It adds
                                      that ‘‘All adjustments required to apply the results of a pro-
                                      ceeding with respect to a partnership * * * to an indirect
                                      partner shall be treated as computational adjustments.’’
                                         Section 6231(a)(10) defines an indirect partner as ‘‘a person
                                      holding an interest in a partnership through 1 or more pass-
                                      thru partners.’’ A ‘‘pass-thru’’ partner, in turn, is defined by
                                      section 6231(a)(9) as ‘‘a partnership * * * or other similar
                                      person through whom other persons hold an interest in the
                                      partnership with respect to which proceedings under this
                                      subchapter are conducted.’’
                                         Mr. Rawls was an indirect partner in each of Group and
                                      Trading because he held interests in both these entities
                                      through Family and other ‘‘pass-thru partner[s]’’ within the
                                      meaning of section 6231(a)(9). Therefore, to the extent the
                                      Family FPAA was merely seeking to apply to Mr. Rawls’ indi-
                                      vidual tax liability the results of the adjustments shown on
                                      the Group FPAA and Trading FPAA, pursuant to section
                                      6231(a)(6), the Family FPAA was only making computational
                                      adjustments.




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                                         Respondent admits that all adjustments shown on the
                                      Family FPAA reflect the consequences of corresponding
                                      adjustments shown on the Group FPAA and Trading FPAA. 19
                                      Thus, to the extent the Family FPAA made any adjustments,
                                      all such adjustments were computational adjustments within
                                      the meaning of section 6231(a)(6).
                                         Computational adjustments are not subject to the full pan-
                                      oply of restrictions on assessments that apply to an ‘‘assess-
                                      ment of a deficiency attributable to any partnership item’’
                                      under section 6225. By way of example, which is not the case
                                      here, under section 6222(c), in the event of ‘‘any computa-
                                      tional adjustment required to make the treatment of the
                                      items by * * * [a] partner consistent with the treatment of
                                      the items on the partnership return’’, the Commissioner may
                                      dispense with an FPAA and proceed to make a direct assess-
                                      ment of the computational adjustment. If the Commissioner
                                      ‘‘erroneously computed any [such] computational adjust-
                                      ment’’, under section 6230(c)(1)(A)(i) the partner is not
                                      eligible for a prepayment remedy but instead must pay the
                                      tax and file a claim for refund.
                                         Another example, which also does not apply here, is pre-
                                      sented by section 6230(c)(1)(A)(ii). As set forth in that sec-
                                      tion, if the Commissioner ‘‘erroneously computed any com-
                                      putational adjustment necessary * * * to apply to the
                                      partner a settlement, * * * [an FPAA], or the decision of a
                                      court in an action’’ relating to the readjustment of partner-
                                      ship items, then the partner is restricted to a refund forum
                                      and may not litigate in deficiency mode. In other words, the
                                      partner has to first pay the tax and then file a claim for
                                      refund. See sec. 6230(c)(2).
                                      III. Is the Family FPAA Valid?
                                           A. TEFRA Segregates Partnership and Nonpartnership
                                              Items.
                                        TEFRA’s design is premised on the conceptual dichotomy of
                                      partnership and nonpartnership items. And TEFRA’s proce-
                                      dures require ‘‘administrative and judicial resolution of dis-
                                        19 The other items shown on the Family FPAA make no change or ‘‘adjustment’’ to Family’s

                                      return. See motion to stay 11 (‘‘The Family FPAA, but for its prematurity vis-a-vis the source
                                      partnership proceedings, is otherwise a valid no change FPAA, in that it addresses items re-
                                      ported on the Family return that respondent determined were correctly reported.’’).




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                                      putes involving partnership items to be separate from and
                                      independent of disputes involving non-partnership items.’’
                                      Maxwell v. Commissioner, 87 T.C. 783, 788 (1986) (citing H.
                                      Rept. 97–760, at 611 (1982) and section 6226(a) and (f)).
                                        The terms ‘‘partnership item’’ and ‘‘nonpartnership item’’
                                      are defined in section 6231(a)(3) and (4), respectively, as fol-
                                      lows:
                                      The term ‘‘partnership item’’ means, with respect to a partnership, 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.
                                      * * * The term ‘‘nonpartnership item’’ means an item which is (or is
                                      treated as) not a partnership item.

                                           B. Computational Adjustments Represent Deficiency Con-
                                              sequences.
                                         By comparison, and as mentioned above, pursuant to sec-
                                      tion 6231(a)(6), ‘‘The term ‘computational adjustment’ means
                                      the change in the tax liability of a partner which properly
                                      reflects the treatment under this subchapter of a partnership
                                      item.’’ Thus, a computational adjustment is the consequence
                                      to the partner of a determination, whether administrative or
                                      judicial, regarding ‘‘the treatment under this subchapter of a
                                      partnership item.’’
                                         Also instructive in this context is section 6230(a)(1), which
                                      governs the application of ‘‘subchapter B of this chapter
                                      * * * to the assessment or collection of any computational
                                      adjustment.’’ (Emphasis supplied.) ‘‘Subchapter B of this
                                      chapter’’ refers to the deficiency procedures set forth in sec-
                                      tions 6211 through 6216. Thus, it is readily apparent from
                                      the language of section 6230(a)(1) quoted above that com-
                                      putational adjustments are viewed as representing the ‘‘defi-
                                      ciency impact’’ of the proper tax treatment of the underlying
                                      partnership items. This partner-level deficiency consequence
                                      may directly flow from an adjustment of a partnership item.
                                      Alternatively, it may arise from an item affected by an
                                      adjustment of a partnership item, a so-called affected item
                                      under section 6231(a)(5).
                                         Where the computational adjustment flows from affected
                                      items, which themselves require partner-level determina-




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                                      tions, then section 6230(a)(2) affords the partner a prepay-
                                      ment forum to challenge the Commissioner’s partner-level
                                      determinations and his resulting computational adjustment.
                                      In the absence of any affected items requiring partner-level
                                      determinations, the partner cannot dispute the Commis-
                                      sioner’s computational adjustment in deficiency mode.
                                      Instead, the Commissioner can make a direct assessment,
                                      and the partner’s remedy is limited to a claim or suit for
                                      refund. See sec. 6230(a)(1), (c)(4).
                                           C. Deficiency Consequences Must Await Completion of
                                             Source Partnership Proceedings.
                                          Because a computational adjustment follows an adminis-
                                      trative or judicial resolution of the treatment of one or more
                                      partnership items, it stands to reason that a computational
                                      adjustment itself cannot be the subject of partnership-level
                                      proceedings. In GAF Corp. & Subs. v. Commissioner, 114
                                      T.C. 519, 525 (2000), we had followed Maxwell and its
                                      progeny to conclude that we lack jurisdiction to redetermine
                                      the effects of the Commissioner’s partnership-level adjust-
                                      ments ‘‘prior to completion of the TEFRA partnership proce-
                                      dures’’. We had characterized any notice that the Commis-
                                      sioner may issue in the intervening period as ‘‘ineffectual’’
                                      and held it to be invalid. Though GAF Corp. & Subs. and the
                                      Maxwell line of cases dealt with notices of deficiency issued
                                      to partner-taxpayers, their logic applies with equal force to
                                      an FPAA issued to an interim partnership that purports to
                                      make only computational adjustments.
                                          In GAF Corp. & Subs. we had construed section 6225(a) as
                                      foreclosing the Commissioner from initiating a partner-level
                                      action before the underlying partnership-level proceeding has
                                      come to a close. We had reasoned that the Commissioner
                                      ‘‘ ‘has no authority to assess a deficiency attributable to a
                                      partnership item until after the close of a partnership pro-
                                      ceeding.’ ’’ GAF Corp. & Subs. v. Commissioner, 114 T.C. at
                                      526 (quoting Dubin v. Commissioner, 99 T.C. 325, 328
                                      (1992)).
                                          As mentioned above, we must consider adjustments shown
                                      on the Family FPAA as representing the deficiency impact of
                                      the adjustments made to the partnership items of the source
                                      partnerships. The reasoning advanced in GAF Corp. & Subs.




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                                      would imply that adjudicating adjustments shown on the
                                      Family FPAA must await culmination of the two source part-
                                      nership-level proceedings.
                                          Not just the intrinsic rationale but also the explicit holding
                                      of GAF Corp. & Subs. precludes respondent from issuing an
                                      FPAA to Family, which shows nothing more than computa-
                                      tional adjustments, before the completion of the partnership-
                                      level proceedings for the source partnerships. Each item
                                      adjusted by the Family FPAA is an ‘‘affected item’’ within the
                                      meaning of section 6231(a)(5). As discussed above, adjust-
                                      ments shown on the Family FPAA simply translate, in tax
                                      liability terms, the adjustments made to the partnership
                                      items of Group and Trading. Thus, any item adjusted pursu-
                                      ant to the Family FPAA ‘‘is affected by a partnership item’’,
                                      viz, the underlying partnership item belonging to either
                                      Group or Trading. This partnership item, in turn, would
                                      have been adjusted pursuant to the respective source FPAA.
                                          We held in GAF Corp. & Subs. v. Commissioner, 114 T.C.
                                      at 526 (quoting Dubin v. Commissioner, 99 T.C. at 328), that
                                      ‘‘ ‘since the tax treatment of affected items depends on part-
                                      nership level determinations, affected items cannot be tried
                                      * * * until the completion of the partnership level pro-
                                      ceeding.’ ’’ It would follow that the affected items that
                                      respondent seeks to adjust by the Family FPAA ‘‘cannot be
                                      tried * * * until the completion of the [respective source]
                                      partnership level proceeding.’’
                                           D. We Lack Jurisdiction Over the Family Case.
                                        For the same reasons that we had advanced in GAF Corp.
                                      & Subs., we hold here that an FPAA issued to an interim
                                      partnership showing nothing more than computational
                                      adjustments is invalid and does not confer jurisdiction on us.
                                        As outlined above, the Commissioner proceeds against a
                                      partner-taxpayer after a TEFRA partnership-level proceeding
                                      by first making a computational adjustment. See secs. 6230,
                                      6231(a)(6). If the computational adjustment does not involve
                                      affected items requiring partner-level determinations, then
                                      the Commissioner may directly assess the amount of the
                                      computational adjustment. See sec. 6230(a)(1). If, however,
                                      any partner-level determinations are required, then the
                                      Commissioner must issue a so-called affected items notice of




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                                      deficiency to the partner-taxpayer. See sec. 6230(a)(2). GAF
                                      Corp. & Subs. has interpreted section 6225(a) to preclude the
                                      Commissioner from issuing this notice before the partner-
                                      ship-level proceeding has come to a close. And the plain lan-
                                      guage of section 6225(a) prohibits an ‘‘assessment of a defi-
                                      ciency attributable to any partnership item’’ before a partner-
                                      ship-level decision becomes final.
                                         Thus, whether or not partner-level determinations are
                                      required, the Commissioner must wait for the completion of
                                      the partnership-level proceedings before he can commence
                                      assessing a computational adjustment against the partner-
                                      taxpayer. Any notice that the Commissioner may issue before
                                      that time that purports to make a computational adjustment,
                                      whether in the guise of an FPAA or otherwise, is therefore
                                      ineffective for conferring jurisdiction on us. Respondent
                                      acknowledges that the Family FPAA makes only those adjust-
                                      ments that section 6231(a)(6) terms ‘‘computational adjust-
                                      ments’’. We conclude that this FPAA, which seeks to give
                                      effect to the adjustments shown in the Group FPAA and the
                                      Trading FPAA, is invalid because it was issued before the
                                      partnership-level proceedings in the Group case and the
                                      Trading case were completed.
                                      IV. Lack of Subject Matter Jurisdiction Prevents a Stay.
                                         Respondent asserts that the Family FPAA is otherwise valid
                                      but merely premature. See motion to stay 8–9 (‘‘Respondent
                                      requests that the Court stay this case rather than dismiss
                                      the determinations of the Family Affected Items under the
                                      holding in GAF v. Commissioner’’.). We cannot stay the pro-
                                      ceeding in a case over which we lack subject matter jurisdic-
                                      tion. As the Supreme Court explained in Arbaugh v. Y & H
                                      Corp., 546 U.S. at 514, ‘‘when a federal court concludes that
                                      it lacks subject matter jurisdiction, the court must dismiss
                                      the complaint in its entirety.’’ Cf. Thompson v. Commis-
                                      sioner, 137 T.C. 220, 224–226 (2011) (holding ‘‘[v]oid [a]b
                                      [i]nitio * * * an affected items notice of deficiency * * *
                                      [issued] in the absence of a need for partner-level determina-
                                      tions’’).
                                         Further, in respondent’s request to stay, rather than dis-
                                      miss, the proceeding in the Family case, we detect echoes of
                                      the dissent’s reasoning in GAF Corp. & Subs. v. Commis-




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                                      sioner, 114 T.C. at 531 (Halpern, J., dissenting) (‘‘A reason-
                                      able interpretation of the statute does not require that we
                                      dismiss this type of case for lack of jurisdiction, only that, if
                                      necessary, we defer proceeding until consideration of the
                                      affected items is appropriate.’’). The dissent’s statutory
                                      interpretation was not adopted by the Court’s majority in
                                      GAF Corp. & Subs. and stare decisis prevents us from revis-
                                      iting that argument here.
                                         We are cognizant of respondent’s concern that the ‘‘no-
                                      second-FPAA’’ rule of section 6223(f) may be deployed as a
                                      shield to seek immunity for Family from another round of
                                      partnership-level proceedings. In particular, respondent wor-
                                      ries that if we hold invalid the Family FPAA, then ‘‘the ability
                                      to issue a second notice under 6230(a)(2)(C) is not available.’’
                                      Motion to stay 10. Section 6230(a)(2)(C) carves out exceptions
                                      from the ‘‘no-second-deficiency notice’’ rule of section 6212(c),
                                      but only for affected items notices of deficiency issued under
                                      6230(a)(2)(B). Section 6230(a)(2)(C) says nothing about the
                                      Commissioner’s ability to issue another FPAA to a partnership
                                      if the first FPAA has been held invalid.
                                         Respondent notes that ‘‘Family is itself subject to the
                                      TEFRA partnership rules requiring the issuance of a notice of
                                      final partnership administrative adjustment to Family’s part-
                                      ners under section 6223(f) [sic] rather than a notice of defi-
                                      ciency under section 6212.’’ Motion to stay 10. We assume
                                      that, instead of citing section 6223(f), respondent intended to
                                      refer to section 6223(a), which requires the Secretary to
                                      ‘‘mail to each partner whose name and address is furnished
                                      to the Secretary notice of * * * the beginning of an adminis-
                                      trative proceeding at the partnership level with respect to a
                                      partnership item, and * * * the final partnership adminis-
                                      trative adjustment resulting from any such proceeding [i.e.,
                                      an FPAA].’’
                                         Respondent argues against applying GAF Corp. & Subs.
                                      and invalidating the Family FPAA because ‘‘section 6223(f)
                                      would prohibit respondent from issuing a second FPAA to
                                      Family after the completion of the source partnership pro-
                                      ceedings.’’ Motion to stay 10. Respondent depicts the fol-
                                      lowing ‘‘doomsday scenario’’ if we were to dismiss the Family
                                      case for lack of jurisdiction: ‘‘Respondent would be forever
                                      barred from having an opportunity to disallow Family’s




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                                      claimed flow-through losses from the source partnerships.’’
                                      Id.
                                         Assume arguendo that respondent in his motion to stay is
                                      entirely accurate in his assertion about the need for an FPAA
                                      to Family, and completely prophetic in his prediction
                                      regarding the impact of our dismissing the Family case for
                                      lack of jurisdiction. Nevertheless, we still would not be per-
                                      suaded to exercise jurisdiction over the Family case.
                                         As noted above, our jurisdiction is conferred by statute.
                                      Specifically, we were established ‘‘under article I of the Con-
                                      stitution of the United States’’. Sec. 7441. Although an
                                      Article I creation, ‘‘the [Tax] [C]ourt exercises a portion of the
                                      judicial power of the United States’’. Freytag v. Commis-
                                      sioner, 501 U.S. 868, 891 (1991). However, we cannot exer-
                                      cise jurisdiction that Congress has not explicitly granted us.
                                      See also Commissioner v. Gooch Milling & Elevator Co., 320
                                      U.S. 418, 422 (1943) (‘‘The Internal Revenue Code, not gen-
                                      eral equitable principles, is the mainspring of the * * * [Tax
                                      Court’s] jurisdiction.’’). Compare sec. 7442 (‘‘The Tax Court
                                      and its divisions shall have such jurisdiction as is conferred
                                      on them by this title’’) with U.S. Const., article III, sec. 2, cl.
                                      1 (‘‘Jurisdiction of [Article III] Courts * * * shall extend to
                                      all Cases, in Law and Equity, arising under this Constitu-
                                      tion’’ (emphasis supplied)).
                                         Unlike an Article III court, ‘‘the Tax Court, being a court
                                      of limited jurisdiction, * * * [does] not have equitable power
                                      to expand its jurisdiction’’. Buchine v. Commissioner, 20 F.3d
                                      173, 178 (5th Cir. 1994) (citing Continental Equities, Inc. v.
                                      Commissioner, 551 F.2d 74, 79 (5th Cir. 1977)). Thus, in
                                      determining the outer limits of the ambit of our subject
                                      matter jurisdiction, we cannot consider the consequences,
                                      howsoever harsh they may be, that our decision inflicts upon
                                      one of the parties. In particular, we do not ‘‘possess[ ] general
                                      equity jurisdiction’’, Gooch Milling & Elevator Co., 320 U.S.
                                      at 421, that could be exercised to prevent or undo an inequi-
                                      table outcome, see also Commissioner v. McCoy, 484 U.S. 3,
                                      7 (1987) (‘‘The Tax Court is a court of limited jurisdiction and
                                      lacks general equitable powers.’’).
                                         But the inequitable outcome that respondent fears and
                                      foretells may not be inevitable. There are good reasons to
                                      believe that respondent is being unduly pessimistic in
                                      prognosticating the effects of our invalidating the Family




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                                      FPAA. 20  The gloom and doom in respondent’s motion to stay
                                      seem to us to be unwarranted.
                                         Strictly speaking, it lies beyond the scope of our inquiry
                                      here to consider and opine on whether, following our decision
                                      to invalidate the Family FPAA before us and dismiss the
                                      Family case for lack of jurisdiction, respondent may be able
                                      to proceed against Family without issuing another FPAA. 21
                                      We point out, however, that crucial to our conclusion that we
                                      lack jurisdiction over the Family case is the provision in sec-
                                      tion 6231(a)(6) that ‘‘All adjustments required to apply the
                                      results of a proceeding with respect to a partnership * * *
                                      to an indirect partner shall be treated as computational
                                      adjustments.’’ While this sentence serves to deprive us of
                                      jurisdiction over the Family case, it may also indicate a path
                                      that respondent can traverse that does not require another
                                      Family FPAA.
                                         To the extent the first Family FPAA, which we are invali-
                                      dating here, represented a computational adjustment,
                                      respondent should be able to proceed against the indirect
                                      partner, Mr. Rawls, without a Family FPAA. If, after the part-
                                      nership-level proceedings in the Group and Trading cases are
                                      completed, no partner-level determinations are required,
                                      then respondent should be able to make a direct assessment
                                      of the computational adjustment. If, on the other hand,
                                      partner-level determinations are required, then respondent
                                      should be able to follow the ‘‘affected items’’ deficiency proce-
                                      dures of section 6230(a)(2). Further, the partner-level deter-
                                      minations specified in section 6230(a)(2) may encompass both
                                      direct and indirect partners.
                                         The definition of ‘‘partner’’ in section 6231(a)(2) includes
                                      not just a ‘‘partner in the partnership’’, but also ‘‘any other
                                      person whose income tax liability * * * is determined in
                                         20 The motion to stay seems at variance with the Commissioner’s other communications ad-

                                      dressing the need for an FPAA to proceed against an upper tier partnership. In fact, the Com-
                                      missioner’s thinking on this matter appears to be in flux. Compare CCA 201020017 (May 21,
                                      2010) (suggesting, for a tiered partnership structure, that ‘‘if the [challenged] deduction is an
                                      affected item requiring partner level determinations we may have to issue an affected item no-
                                      tice to disallow the deduction as an affected item. Since the partner is itself a TEFRA partner-
                                      ship, we may have to issue an affected item FPAA at that level to make this determination’’
                                      (emphasis supplied)) with CCA 200907033 (Feb. 23, 2009) (declaring that ‘‘We don’t issue FPAAs
                                      to [upper] tier partnerships if the adjustment originates in another ‘source’ partnership. We only
                                      issue an FPAA for the source partnership to all of its partners (including its partnership part-
                                      ners).’’).
                                         21 Such an FPAA to Family would presumably represent the ‘‘affected items FPAA’’ referred

                                      to in CCA 201020017. See supra note 20.




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                                      294                 138 UNITED STATES TAX COURT REPORTS                                       (271)


                                      whole or part by taking into account directly or indirectly
                                      partnership items of the partnership.’’ (Emphasis supplied.)
                                      There is no reason a single ‘‘affected items’’ deficiency pro-
                                      ceeding under section 6230(a)(2) should not suffice to make
                                      any factual determinations required to give effect to the
                                      findings and holdings of the Group and Trading cases.
                                      V. Source Partnership Proceedings Stand Alone.
                                        Finally, we observe that our conclusion here is perfectly
                                      congruent with our holding in Sente Inv. Club P’ship of Utah
                                      v. Commissioner, 95 T.C. 243 (1990), that a proceeding
                                      involving a pass-thru interim partner cannot affect the treat-
                                      ment of items originating with lower tier source partner-
                                      ships. We held there that the treatment of items in source
                                      partnerships must be determined in separate proceedings
                                      involving those partnerships. In doing so, we noted that ‘‘the
                                      notice provisions [of TEFRA] with respect to indirect partners
                                      are calculated to permit them an opportunity to participate
                                      in the only proceeding in which adjustments to the return of
                                      the partnership in which they hold an indirect interest may
                                      be contested.’’ Id. at 249 (emphasis supplied).
                                        It follows that the only proceedings in which adjustments
                                      to the returns of the source partnerships, in which Mr. Rawls
                                      holds an indirect interest, may be contested are the Group
                                      and Trading cases. The Family FPAA is invalid, and we lack
                                      jurisdiction over the Family case.
                                        The Court has considered all of petitioners’ and respond-
                                      ent’s contentions, arguments, requests, and statements. To
                                      the extent not discussed herein, we conclude that they are
                                      meritless, moot, or irrelevant.
                                        To reflect the foregoing,
                                                                      An order of dismissal for lack of jurisdic-
                                                                   tion will be entered in docket No. 12938–07.

                                                                               f




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