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September 13, 2001


The opinion of the court was delivered by: Hurley, District Judge.


Pending before the Court in this action for recovery of federal income tax, interest, penalties and additions to tax assessed by the Defendant United States [hereinafter "IRS"] against taxpayer husband and wife Plaintiffs Daniel and Ingrid Carroll is (1) the IRS's motion, made pursuant to Rules 12(b)(1), 12(b)(6), and 56(c) of the Federal Rules of Civil Procedure, for an order dismissing the Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, or alternatively, for summary judgment, (U.S.' Mot. Dismiss Alt. Summ. J.); (2) the Plaintiffs' cross-motion, made pursuant to Rule 15(d), to file a supplemental complaint, (Pls.' Notice Cross-Mot.); and (3) the IRS's motion, made pursuant to Local Civil Rule 6.3, for reconsideration of this Court's Memorandum and Order, dated October 23, 2000, see Carroll v. United States, No. CV 98-5740, 2000 WL 1819419 (E.D.N.Y. Oct. 23, 2000) [hereinafter "Carroll II"], that had (a) granted Plaintiffs' motion, made pursuant to Federal Rule of Civil Procedure 56(a), for partial summary judgment with respect to their claim for refund of certain penalties assessed against them by the IRS, and (b) granted Plaintiffs' motion, made pursuant to Local Civil Rule 6.3, for reconsideration of this Court's Memorandum and Order, dated October 19, 1999, see Carroll v. United States, No. CV 98-5740, 1999 WL 1090814 (E.D.N.Y. Oct. 19, 1999) [hereinafter "Carroll I"], that had originally denied Plaintiffs' Rule 56(a) motion. (U.S.' Notice Mot. Recons.)


The legal framework underlying the instant motions is complex, involving the Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA"), Pub.L. No. 97-248, 96 Stat. 324 (1982). The factual history in this case — involving 1995 tax assessments related to Plaintiffs' 1982 tax liabilities arising from an investment in a plastics recycling limited partnership, after proceedings in both the United States District Court for the Middle District of Florida and the United States Tax Court — is likewise complex. Therefore the Court sets forth in some detail the legal and factual background precipitating this litigation.


Prior to the enactment of TEFRA, partnerships generally were not taxable entities under the Internal Revenue Code. See Chimblo v. Commissioner, 177 F.3d 119, 121 (2d Cir. 1999). Typically, the income and expenses of the partnership would "flow through" to the partners and be taxed at the individual partner level. See Transpac Drilling Venture v. Commissioner, 147 F.3d 221, 223 (2d Cir. 1998). However, that statutory setup "proved inefficient and often led to inconsistent results" as between different partners who could separately challenge the taxation of their partnership income, sometimes with different results. See Monti v. United States, 223 F.3d 76, 78 (2d Cir. 2000) [hereinafter Monti II]. Congress enacted TEFRA in 1982 to "ensure equal treatment of partners by uniformly adjusting partners' tax liabilities and channeling any challenges . . . into a single, unified proceeding." Kaplan v. United States, 133 F.3d 469, 471 (7th Cir. 1998) [hereinafter Kaplan II]; accord Chimblo, 177 F.3d at 121.

In order to achieve consistent treatment of partners, TEFRA provides that the tax treatment of "partnership items" is to be determined at the partnership level. 26 U.S.C. § 6221. TEFRA defines a "partnership item" as "any item required to be taken into account for the partnership's taxable year . . . to the extent regulations prescribed by the [IRS] provide that . . . such item is more appropriately determined at the partnership level than at the partner level." Id. § 6231(a)(3). A "non-partnership item" is defined in the negative as an item "which is (or is treated as) not a partnership item." Id. § 6231(a)(4). An "affected item" is "any item to the extent such item is affected by a partnership item." Id. § 6231(a)(5). Therefore an affected item is a hybrid in the sense that its proper assessment may require a determination at the individual partner level after the completion of the partnership level proceeding.

TEFRA requires partnerships to designate a "tax matters partner" (TMP) to serve as a liaison between the IRS and the individual partners in administrative proceedings, and as a representative of the partners in judicial proceedings. See id. § 6231(a)(7); Addington v. Commissioner, 205 F.3d 54, 60 (2d Cir. 2000). The TMP is a fiduciary with the authority to represent and, under certain circumstances, bind the limited partners in such proceedings. Transpac Drilling, 147 F.3d at 223. The individual limited partners may designate any general partner to be the partnership's TMP. 26 U.S.C. § 6231(a)(7)(A). Absent such designation, the "general partner having the largest profits interest in the partnership at the close of the taxable year involved" is the TMP by default, id. § 6231(a)(7)(B), unless that procedure is impracticable, in which case the IRS may select some other partner to serve as TMP. Id. § 6231(a)(7).

After a partnership files its return for a tax year, the IRS may decide to commence an administrative proceeding in order to make adjustments to the return. The IRS has three years from the date the partnership return is due to issue a final partnership administrative adjustment ("FPAA") affecting liability for taxes attributable to "partnership items." See id. § 6229(a). However, this three year statute of limitations may be extended by agreement between the IRS and the partnership's TMP, whose consent binds all partners. Id. § 6229(b)(1)(B).

The IRS must notify partners of any adjustments it makes to partnership and nonpartnership items. Notice is given through an FPAA for adjustments to partnership items, see id. § 6223(a)(2), and through a "notice of deficiency" for nonpartnership items, see id., §§ 6211, 6212. See also PAA Mgmt., Ltd. v. United States, 962 F.2d 212, 214-15 (2d Cir. 1992). To ease the burden of notifying partners in partnerships exceeding 100 members, TEFRA only requires that the FPAA be sent to "notice partners" (i.e., those who own at least one percent of the partnership) within 60 days after the IRS mails the FPAA to the TMP. See 26 U.S.C. § 6223(a)(2), (b)(1), (d)(2), 6231(a)(8). Thus, the IRS is not required to individually notify small-share partners (i.e., "non-notice partners") of adjustments to partnership items; notice to the TMP is deemed constructive notice upon them. Kaplan II, 133 F.3d at 472. Rather, it is the responsibility of the TMP to forward a copy of the FPAA to non-notice partners. See id. § 6223(g). If the TMP fails to notify non-notice partners of adjustments to partnership items, it does not affect the applicability of any adjustments or partnership proceedings. See id. § 6230(f).

For 90 days after the mailing date of the FPAA, the TMP has the exclusive right to file an action for readjustment of the partnership items in either Tax Court, the Court of Federal Claims, or a United States District Court. Id. § 6226(a). If the TMP fails to bring an action to contest the FPAA within that time period, any notice partner, or any group of non-notice partners holding at least a 5% interest in the aggregate, may file suit within the following 60 days in any one of those courts. Id. § 6226(b)(1). Once a petition challenging an FPAA is filed, all partners are considered parties to the action and will be bound by the decision regardless of whether they elected to participate. Id. § 6226(c); Monti II, 223 F.3d at 79. This process prevents subsequent, multiple suits by individual partners.

Once a court's decision in an action for readjustment of partnership items becomes final, it is conclusive with regard to the treatment of partnership items. 26 U.S.C. § 6230(c)(4). If the IRS decides to assess taxes upon the individual partners as a result of the outcome of such a proceeding, it must do so within a year from the date the decision becomes final, id. § 6229(d), by sending a notice of deficiency to each individual partner-taxpayer within that time. See id. § 6212(a).


Pursuant to 28 U.S.C. § 1346(a)(1), federal district courts enjoy original jurisdiction over

[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.

However, that broad grant of jurisdiction is tempered by certain procedural requirements, and by special rules applicable to "partnership items" under TEFRA.

Procedurally, 26 U.S.C. § 7422(a) provides that no such suit shall be maintained "until a claim for refund or credit has been duly filed" with the IRS. The taxpayer must file his claim for refund with the IRS within two years (according to the administrative limitation period applicable under the facts of this case) from the date he paid the tax that he seeks to recover. Id. § 6511(a). Once a claim for refund has been filed, the taxpayer must still wait six months before bringing suit, unless the IRS sooner renders an adverse decision on the claim. Id. § 6532(a)(1). An adverse decision on the claim triggers a two-year limitations period within which the taxpayer must bring suit. Id. The amount that the taxpayer may recover in such a suit may not exceed the amount he paid to the IRS during the two years immediately preceding the filing of his administrative claim for refund. Id. § 6511(b)(2)(B). These limits on the accrual period, limitation periods, and amount recoverable are jurisdictional in nature. See Magnone v. United States, 902 F.2d 192, 193 (2d Cir. 1990) (per curiam) (the "prior claim rule" of § 7422(a) is jurisdictional); Weisbart v. United States Dep't of Treas., 222 F.3d 93, 94 (2d Cir. 2000) (the limitation period of § 6511(a) is jurisdictional); Roberts v. United States, 242 F.3d 1065, 1067 (Fed.Cir. 2001) (the accrual period of § 6532(a)(1) is jurisdictional); Maiman v. IRS, No. 96-CV-5566, 1998 WL 161003, at *1 (E.D.N.Y. Mar. 27, 1998) (the limitations period of § 6532(a)(1) is jurisdictional), aff'd mem., 182 F.3d 900 (2d Cir. 1999); Howard Bank v. United States, 759 F. Supp. 1073, 1074 (Vt. 1991) (same), aff'd mem., 948 F.2d 1275 (2d Cir. 1991); cf. Porter v. United States, 919 F. Supp. 927, 932-34 (E.D.Va. 1996) (holding that § 6511(b)(2)(A), a companion provision to § 6511(b)(2)(B), is jurisdictional). But cf. Kishnani v. IRS, No. CV-91-3953, 1992 WL 167270, at *4 n. 2 (E.D.N.Y. June 24, 1992) (questioning, but declining to decide, whether § 6511(b)(2)(A) is a substantive, as opposed to jurisdictional, provision).

Special rules also limit the district court's jurisdiction to entertain actions for the recovery of tax "attributable to partnership items" under TEFRA. Specifically, pursuant to 26 U.S.C. § 7422(h) such actions may not be maintained "except as provided in section 6228(b)*fn1 or section 6230(c)*fn2" of the Internal Revenue Code. Id. But if the exceptions contained in § 7422(h) do not apply, then § 7422(h) effectively preempts the general grant of jurisdiction in § 1346(a)(1), and a district court will lack subject matter jurisdiction over any claim for recovery of tax attributable to partnership items. See Monti II, 223 F.3d at 78; Kaplan II, 133 F.3d at 473.

A district court will also have jurisdiction over a claim for recovery of tax attributable to a partnership item if that item converts to a nonpartnership item in one of the several ways enumerated in § 6231(b)(1), which provides that a partner's partnership items

shall become nonpartnership items as of the date —

(A) the [IRS] mails to such partner a notice that such items shall be treated as nonpartnership items,
(B) the partner files suit under section 6228(b) after the [IRS] fails to allow an administrative adjustment request with respect to any of such items,
(C) the [IRS] enters into a settlement agreement with the partner with respect to such items, or
(D) such change occurs under subsection (e) of section 6223 (relating to effect of [IRS]'s failure to provide notice) or under subsection (c) of this section.

26 U.S.C. § 6231(b)(1)(A)-(D). In summary, should a partnership item fit into one of the exceptions to § 7422(h) or become a nonpartnership item under one of the subparagraphs of § 6231(B)(1), a district court will have jurisdiction to hear the claim. See Hirshfield v. United States, No. 99 Civ. 1828, 2001 WL 579783, at *3 (S.D.N.Y. May 31, 2001).


In 1982, Plaintiff Daniel L. Carroll ("Carroll") purchased an interest in a limited partnership known as Stevens Recycling Associates ("Stevens") for $16,667. (Compl. ¶ 11; U.S.' Resp. Req. Admis. ¶ 4.) As one of the partners of the law firm of Shea & Gould, he purchased the limited partnership interest in Stevens based upon the recommendation and advice of other of his law partners. (Compl. ¶¶ 8, 10.) Samuel Winer ("Winer"), Stevens's general partner, was the promoter and the TMP of various plastics recycling limited partnerships, including Stevens. (Id. ¶ 12; U.S.' Resp. Req. Admis. ¶ 4.) As a result of Carroll's purchase of one-third of a unit of Stevens, he and his wife claimed on their 1982 joint tax return a deduction for advance rentals in the amount of $13,064, an investment tax credit of $12,810, and a business energy credit of $12,810, thereby reducing their tax liability by $32,138. (Compl. ¶ 11; U.S.' Resp. Req. Admis. ¶ 5.)

On August 17, 1984, at the request of District Counsel for the IRS in Jacksonville, Florida, the Government filed a complaint against Winer in the United States District Court for the Middle District of Florida. (Compl. ¶ 13; U.S.' Resp. Req. Admis. ¶¶ 5-6.) In that complaint, the Government alleged that Winer had organized and promoted various abusive tax shelters, including Stevens, and had made gross valuation overstatements in connection with Stevens. (Compl. ¶ 14; cf. U.S.' Resp. Req. Admis. ¶ 7.) The district court apparently agreed, entering, at the IRS's request, a final judgment on February 18, 1985, permanently enjoining Winer, inter alia, from the "organization, promotion, advertising, marketing, selling or offering for sale of the Tax Shelter [Stevens]." United States v. Winer, No. 84-1123-CIV-T-13, slip op. ¶ 3(a) (M.D.Fla. Feb. 18, 1985) (Compl.Ex. A.). In addition, the court enjoined Winer from representing any investor in Stevens in order to obtain tax deductions or credits. See id. ¶ 3(b). Pursuant to the final judgment, Winer was to send a letter to each partner in Stevens tendering his resignation as TMP and waiving his right to intervene as TMP in any court proceeding on behalf of the partnership. See id. ¶ 4.

Winer resigned as TMP and sent each limited partner of Stevens a form notice informing him or her of the injunction. (Compl. ¶ 18; cf. U.S.' Resp. Req. Admis. ¶ 13.) The attorney representing the IRS in the district court proceeding selected Stuart Hirshfield ("Hirshfield"), one of the limited partners of Stevens, to serve as Stevens' replacement TMP. (Compl. ¶ 19.) The notice sent by Winer to the Stevens limited partners reflected Hirshfield's new status. (Id.)

While Winer was enjoined from acting as TMP and Hirshfield was serving as his replacement, the IRS sought to reinstate Winer as the TMP for Stevens for specific limited purposes. (Id. ¶ 21; U.S.' Resp. Req. Admis. ¶ 20.) Winer agreed to be reinstated under the belief that he could be compelled to do so, and under threat of independent legal action against him by the IRS. (Compl. ¶ 21.) Therefore, by "Joint Motion for Specific Relief from Final Judgment of Permanent Injunction," filed without notice to the Stevens limited partners, and notwithstanding that Hirshfield had not been removed as TMP, the IRS and Winer requested that Winer "be allowed to act as tax matters partner . . . for the purpose of providing administrative services." (Id.; cf. U.S.' Resp. Req. Admis. ¶¶ 21-23.) Without Hirshfield's knowledge, or the knowledge of any of Stevens's limited partners, the district court granted that motion on September 17, 1996, and ordered that Winer "may act as tax matters partner for the purpose of providing administrative services." (Compl. ¶ 22; cf. U.S.' Resp. Req. Admis. ¶¶ 24-25, 27-28.)

At the request of the IRS, the "administrative service" provided by Winer was his signature on Forms 872-P extending the already expired three-year limitations period for issuance of an FPAA, thereby allowing the IRS to issue an FPAA to Stevens and to serve notices of deficiency upon the Stevens limited partners. (Compl. ¶ 25; U.S.' Resp. Req. Admis. ¶ 29.) Winer never informed the Stevens limited partners that he had extended the limitations period. (Compl. ¶ 25.) On or about June 5, 1989, the Government issued a Notice of FPAA to Stevens for tax years 1982, 1983, 1984, and 1985, which was addressed to Winer as TMP. (Id. ¶ 29; U.S.' Resp. Req. Admis. ¶¶ 31, 33.) The FPAA drastically adjusted Stevens' income and deductions. (Compl. ¶ 29.)

On July 24, 1989, apparently in violation of the final judgment of the federal district court in Florida, Winer, representing himself to be Stevens' TMP, brought a § 6226 action for readjustment of the partnership items for tax years 1982 through 1985 in the United States Tax Court on behalf of Stevens. (Id. ¶ 31; U.S.' Resp. Req. Admis. ¶ 34; U.S.' Mot. Dismiss Alt. Summ. J. Ex. 2.) In response to Winer's petition, IRS's District Counsel in Boston, Massachusetts, filed an Answer in the Tax Court. (Compl. ¶ 31.) Although the IRS's attorneys knew, inter alia, that Winer had been enjoined from acting as Stevens' TMP in any court proceeding, that Hirshfield had been appointed as Stevens' TMP, and that Winer was not acting as the Stevens' limited partners' fiduciary, (id. ¶ 33, see id. ¶ 35), but under a conflict of interest, cf. Transpac Drilling, 147 F.3d at 227-28, the IRS failed to raise these defenses in its Answer or otherwise inform the Tax Court of these facts, (Compl. ¶ 33), instead pursuing a judgment from the Tax Court, (id.).

On November 9, 1993, pursuant to the Tax Court Rule of Practice and Procedure 248(b), the IRS filed a Motion for Entry of Decision in Tax Court, representing that Winer had "entered into a settlement agreement" with the IRS and "agreed to the proposed decision." (Id. ¶ 35; see U.S.' Resp. Req. Admis. ¶ 38.) Again, the motion did not disclose to the Tax Court the restraints on Winer's authority to represent and bind the limited partners, or Winer's lack of a fiduciary relationship. (Compl. ¶¶ 35-36.) Nor did the motion disclose that neither the IRS nor Winer would provide notice of the settlement or the judgment of the Tax Court to Stevens' limited partners. (Id. ¶¶ 35, 38, 40.)

Pursuant to Winer's settlement with the IRS, the Tax Court, on February 23, 1994, entered an undated decision (the "February 1994 Decision") on its docket relating to Stevens' income for tax years 1982, 1983, 1984, and 1985. Carroll II, 2000 WL 1819419, at *1. On June 6, 1994, the Tax Court issued an Order and Decision (the "June 1994 Decision") that purported to vacate the February 1994 Decision on the grounds that through inadvertent clerical error, it did not bear the requisite "entered date." Id. at *1. However, the June 1994 Decision was otherwise identical to the February 1994 Decision in all material respects. Id.



On July 3, 1995, the IRS issued Plaintiffs a notice of deficiency, proposing deficiencies for the 1982 tax year for negligence penalties and valuation overstatement penalties under 26 U.S.C. § 6653(a) and 6659. (Carroll Aff. of 4/15/99 ¶ 8 & Ex. D.) On November 20, 1995, Plaintiffs were assessed the penalties under these two statutes in the amounts of $51,357.27 and $7,686.00, respectively, plus interest. (U.S.' Local R. 56.1 Stmt. Facts ¶ m & Ex. 4; Pls.' Resp. U.S.' Local R. 56.1 Stmt. Facts ¶ M.) Plaintiffs paid to the IRS a total of $81,391.95 in respect of the penalty additions and interest. (U.S.' Local R. 56.1 Stmt. Facts ¶ o; Pls.' Resp. U.S.' Local R. 56.1 Stmt. Facts ¶ O.)

In Carroll II, familiarity with which is assumed, this Court held that Plaintiffs were entitled to recovery of $81,079.16 that they paid with respect to the July 3, 1995, notice of deficiency. 2000 WL 1819419, at *8. In that regard, the Court held as a matter of law that pursuant to 26 U.S.C. § 7481(a)(1) and 7483 (providing that a decision of the Tax Court becomes final upon the expiration of the time allowed for filing a notice of appeal, which is 90 days after the Tax Court's decision is entered), the February 1994 Decision of the Tax Court became final on May 24, 1994, such that (1) the Tax Court had no jurisdiction to vacate the final order by later order; and (2) the July 3, 1995, notice of deficiency issued to Plaintiffs was time-barred as a matter of law under the one-year limitation period of § 6229(d). Id. at *5, *8. In short, the Court granted Plaintiffs' motion for partial summary judgment on Count IX of the Complaint for the reasons identified in Count III. See discussion infra Part I.E.

2. Other Challenged Assessments

On July 17, 1995, the IRS assessed additional tax against Plaintiffs for the year 1982 in the amount of $32,138.00. The same day, the IRS also assessed against Plaintiffs tax-motivated transaction interest in the amount of $99,488.54, pursuant to 26 U.S.C. § 6621(c). (U.S.' Local R. 56.1 Stmt. Facts ¶ j & Ex. 4; Pls.' Resp. U.S.' Local R. 56.1 Stmt. Facts ¶ J; Carroll Aff. Opp'n Mot. Dismiss Alt. Summ. J. & Supp. Cross-Mot. Supplement Compl. Ex. 1.) Plaintiffs paid to the IRS a total of $136,913.43 on account of these assessments of tax and interest. (U.S.' Local R. 56.1 Stmt. Facts T k; Pls.' Resp. U.S.' Local R. 56.1 Stmt. Facts ¶ K.)

3. Plaintiffs' Payments and Requests for Refund and/or Abatement

With respect to the assessments against Plaintiffs described supra Parts I.D.1-2, Plaintiffs paid the following amounts on the following dates:

09/01/95 $32,138.00 10/12/95 3,000.00 11/02/95 3,000.00 11/30/95 3,000.00 01/16/96 95,771.43 04/15/96 563.55 06/03/96 20,000.00 07/18/96 43.00 08/13/96 2,000.00 09/12/96 2,000.00 10/16/96 2,000.00 11/15/96 51,295.52 11/27/96 3,186.13 03/11/97 910.30

(U.S.' Local R. 56.1 Stmt. Facts Ex. 4.)

On May 29, 1996, Plaintiffs executed a Form 843 (i.e., a "Claim for Refund and Request for Abatement") and a Form 1040X (i.e., an "Amended U.S. Individual Income Tax Return"). (U.S.' Opp'n Pls.' Stmt. Facts Local R. 56.1 25 & Ex. 8.) The Forms 843 and 1040X were mailed under cover letter dated May 30, 1996, and received by IRS on June 4, 1996. (Id. Exs. 7, 8.) The cover letter requested "that these claims for refunds be expedited." (Id. Ex. 7.)

The face of Form 843 references §§ 6653(a) and 6659 (i.e., the provisions of the Internal Revenue Code under which Plaintiffs were assessed deficiencies the subject of Carroll I and Carroll II). An "Addendum to Form 843" addresses a list of reasons argued by Plaintiffs as to why the deficiencies assessed under these provisions "should be abated and, to the extent paid, refunded to the taxpayer." The first reason is stated as follows:

1. The negligence penalty and valuation overstatement penalty assessments in the respective amounts of $51,351.27 and $7,686.00 made under Sections 6653(a) and 6659 of the Internal Revenue Code for the year [1982] are invalid because the underlying tax assessments upon which they are based are invalid and/or barred by the statute of limitations for the reasons more fully set forth in Form 1040X (copy attached).

Plaintiffs' "Addendum to Form 1040X," in turn, makes the specific argument — accepted by this Court in Carroll II — that because the February 1994 Decision of the Tax Court became final on May 24, 1994, the IRS's July 3, 1995, notice of deficiency was time-barred as a matter of law under the one-year limitation period of § 6229(d).

By a fill-in-the-blank form letter dated September 13, 1996, the IRS wrote Plaintiffs:

Dear T/P

This is in reply to your inquiry dated 5-29-96. The issue you raise in your correspondence is related to the following partnership: STEVENS RECYCLING. Your request for abatement is denied for the reason explained below.
This partnership is subject to the uniform partnership proceedings of the Internal Revenue Code (Section 6221 and other sections, also known as the TEFRA partnership proceedings).
The partnership proceedings for the subject partnerships were completed due to the reason checked below:

* Court decision entered and became final on 6/6/94.

— Final Partnership Notice (FPAA) defaulted on __/__/__.
The issue you have raised was not raised during the partnership proceeding and can not be raised after the proceedings have been completed. Since the partnership proceedings have been completed, we will not consider a request for abatement.
If you have received a Notice of Deficiency determining penalties with respect to your investment in the above partnership, you should follow the instructions set forth in the Notice of Deficiency concerning the alternatives available to you; either agreement to the ...

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