Filed: Aug. 16, 2007
Latest Update: Mar. 03, 2020
Summary: 129 T.C. No. 5 UNITED STATES TAX COURT ARLENE NUSSDORF, ET AL.,1 Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket Nos. 24289-05, 24297-05, Filed August 16, 2007. 24301-05. Held: Certain items relating to the purported contributions of certain Euro options to Evergreen Trading, LLC, by its respective members, including such members’ respective bases in such options, are partnership items, as defined in sec. 6231(a)(3), I.R.C. David D. Aughtry, Linda S. Paine, and William E. Buch
Summary: 129 T.C. No. 5 UNITED STATES TAX COURT ARLENE NUSSDORF, ET AL.,1 Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket Nos. 24289-05, 24297-05, Filed August 16, 2007. 24301-05. Held: Certain items relating to the purported contributions of certain Euro options to Evergreen Trading, LLC, by its respective members, including such members’ respective bases in such options, are partnership items, as defined in sec. 6231(a)(3), I.R.C. David D. Aughtry, Linda S. Paine, and William E. Bucha..
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129 T.C. No. 5
UNITED STATES TAX COURT
ARLENE NUSSDORF, ET AL.,1 Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 24289-05, 24297-05, Filed August 16, 2007.
24301-05.
Held: Certain items relating to the purported
contributions of certain Euro options to Evergreen
Trading, LLC, by its respective members, including such
members’ respective bases in such options, are
partnership items, as defined in sec. 6231(a)(3),
I.R.C.
David D. Aughtry, Linda S. Paine, and William E. Buchanan,
for petitioners.
William C. Bogardus, for respondent.
1
Cases of the following petitioners are consolidated
herewith: Glenn Nussdorf & Claudine Strum, docket No. 24297-05,
and Stephen & Alicia Nussdorf, docket No. 24301-05.
- 2 -
OPINION
CHIECHI, Judge: These cases are before the Court on respon-
dent’s respective motions to dismiss for lack of jurisdiction
(respondent’s respective motions) and petitioners’ respective
motions to dismiss partnership items and affected items (peti-
tioners’ respective motions). We shall grant respondent’s
respective motions and deny petitioners’ respective motions.
Background
The record establishes and/or the respective parties in
these cases do not dispute the following.
Petitioners in these consolidated cases resided in the State
of New York at the time they filed their respective petitions.
During the taxable years 1999 and 2000, petitioners Arlene
Nussdorf, Glenn Nussdorf, and Stephen Nussdorf, through certain
flowthrough entities that they respectively owned and that are to
be disregarded for Federal income tax (tax) purposes (flowthrough
entities), were members of or partners2 in Evergreen Trading, LLC
(Evergreen Trading), an entity subject to the provisions of
sections 6221-6234.3
2
The Court’s use of the words “members”, “partners”, and
similar words is for convenience only and does not indicate the
Court’s agreement that such words reflect the substance of what
transpired.
3
All section references are to the Internal Revenue Code
(Code) in effect at all relevant times.
- 3 -
On November 18, 1999, each of the flowthrough entities
purportedly entered into two option trades involving
Euros with AIG International, Inc. (AIG). One of those option
trades was the purported purchase from AIG on November 18, 1999,
of an option for a stated volume of Euros, which petitioners
refer to as the purchased Euro option. The second option trade
was the sale to AIG on the same date of an option for essentially
the same volume of Euros but at a different so-called strike or
exercise price, which petitioners refer to as the sold Euro
option. The two option trades with AIG into which petitioners’
respective flowthrough entities purportedly entered on November
18, 1999, may be summarized as follows:
Payoff Amount
(U.S. $
Option Premium Equivalent) Strike Price
Long Position $26,700,190 $548,240,768 1.0535
Short Position $26,433,172 $548,761,167 1.0545
(For convenience, we shall sometimes refer collectively to the
purported purchased Euro option and the purported sold Euro
option as the Euro options.)
On November 30, 1999, petitioners’ respective flowthrough
entities purportedly contributed their respective Euro options
and $667,500 in cash to Evergreen Trading in exchange for
slightly less than a one-third member or partner interest
therein.
- 4 -
During December 1999, Evergreen Trading established two
substantially similar offsetting currency options that were
executed on December 10, 1999, and that had expiration dates of
December 21, 1999, and settlement dates of December 21, 2001.
The costs of the premiums of those currency options were
$93,861,797 and $93,861,531, respectively. The combined posi-
tions were established so that one position was guaranteed to
have a payout equal to the total premiums of both positions,
while the other position was guaranteed to have a minimal payout.
The first position created a gain if the CZK/EUR4 was at or above
a set exchange rate, while the second position created a similar
gain if the CZK/EUR was below the same exchange rate. The
position not incurring a gain and having a minimal payout was
settled on December 21, 1999, with a loss reported of $89,215,088
after a payout of $4,646,709. The second position was partially
unwound on December 30, 1999, for proceeds of $102,820,761 and a
reported gain of $49,788,977.
As a result of the above-described currency transactions,
Evergreen Trading reported in its 1999 partnership tax return a
total ordinary loss from currency trades of $39,426,091. A
portion of such loss totaling $11,691,521 was allocated to
petitioners’ respective flowthrough entities.
4
CZK/EUR reflects the exchange rate of Czech korunas for
Euros.
- 5 -
On January 18, 2000, the remaining balance of the second
option was unwound resulting in $79,208,185 received by Evergreen
Trading with respect to which Evergreen Trading reported in its
2000 partnership tax return a gain of $38,378,419. A portion of
such gain totaling $11,247,796 was allocated to petitioners’
respective flowthrough entities.
During the latter part of March 2000, petitioners’ respec-
tive flowthrough entities withdrew from Evergreen Trading and
paid a 5-percent withdrawal fee of $159,302. When such entities
withdrew from Evergreen Trading, each received a liquidating
distribution of 192,602 Euros with a fair market value of
$185,438. No other cash or property was distributed to petition-
ers’ respective flowthrough entities (or to petitioners in these
cases).
On December 17, 2002, respondent issued a notice of begin-
ning of administrative proceeding with respect to Evergreen
Trading for the taxable year 1999, and on March 19, 2003, respon-
dent issued such a notice with respect to Evergreen Trading for
the taxable year 2000. On September 26, 2005, respondent issued
a notice of final partnership administrative adjustment (FPAA)
with respect to Evergreen Trading for the taxable years 1999 and
2000.
In the FPAA that respondent issued with respect to Evergreen
Trading for the taxable years 1999 and 2000, respondent made the
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following adjustments:
1. It is determined that neither Evergreen Trading,
LLC nor its purported partners have established
the existence of Evergreen Trading, LLC as part-
nership as a matter of fact.
2. Even if Evergreen Trading, LLC existed as a part-
nership, the purported partnership was formed and
availed of solely for purposes of tax avoidance by
artificially overstating basis in the partnership
interests of its purported partners. The forma-
tion of Evergreen Trading, LLC, the acquisition of
any interest in the purported partnership by the
purported partner, the purchase of offsetting
options, the transfer of offsetting options to a
partnership in return for a partnership interest,
the purchase of assets by the partnership, and the
distribution of those assets to the purported
partners in complete liquidation of the partner-
ship interests, and the subsequent sale of those
assets to generate at a loss, all within a period
of less than six months, had no business purpose
other than tax avoidance, lacked economic sub-
stance, and, in fact and substance, constitutes an
economic sham for federal income tax purposes.
Accordingly, the partnership and the transactions
described above shall be disregarded in full and
any purported losses resulting from these transac-
tions are not allowable as deductions are not
allowed for federal income tax purposes.
3. It is determined that Evergreen Trading, LLC was a
sham, lacked economic substance and, under §
1.701-2 of the Income Tax Regulations, was formed
and availed of in connection with a transaction or
transactions in taxable year 1999, a principal
purpose of which was to reduce substantially the
present value of its partners’ aggregate federal
tax liability in a manner that is inconsistent
with the intent of Subchapter K of the Internal
Revenue Code. It is consequently determined that:
a. the Evergreen Trading, LLC is disre-
garded and that all transactions engaged
in by the purported partnership are
treated as engaged in directly by its
purported partners. This includes the
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determination that the assets purport-
edly acquired by Evergreen Trading, LLC,
including but not limited to foreign
currency options, were acquired di-
rectly by the purported partners.
b. the foreign currency option(s), purport-
edly contributed to or assumed by Ever-
green Trading, LLC, are treated as never
having been contributed to or assumed by
said partnership and any gains or losses
purportedly realized by Evergreen Trad-
ing, LLC on the option(s) are treated as
having been realized by its partners.
c. contributions to Evergreen Trading, LLC
will be adjusted to reflect clearly the
partnership’s or purported partners’
income.
4. It is determined that the Euro short positions
(written call options) transferred to Evergreen
Trading, LLC constitute liabilities for purposes
of Treasury Regulation §1.752-6T, the assumption
of which by Evergreen Trading, LLC shall reduce
the purported partners’ bases in Evergreen Trad-
ing, LLC in the amounts of $26,433,171 for each of
the three partners, but not below the fair market
value of the purported partnership interest.
5. It is determined that trading losses of
$38,837,363 claimed by Evergreen Trading, LLC are
part of straddle positions as governed by § 1092
and as such are nondeductible losses in the 1999
tax year. Limitations imposed by § 1092 include
the limitation that deductible trading losses
incurred as part of straddle positions are limited
to only those amounts in excess of unrecognized
trading gains.
6. It is determined that neither Evergreen Trading,
LLC nor its purported partners entered into the
option(s) positions or purchase the foreign cur-
rency or stock with a profit motive for purposes
of § 165(c)(2).
7. It is determined that, even if the foreign cur-
rency option(s) are treated as having been con-
- 8 -
tributed to Evergreen Trading, LLC, the amount
treated as contributed by the partners under sec-
tion 722 of the Internal Revenue Code is reduced
by the amounts received by the contributing part-
ners from the contemporaneous sales of the call
option(s) to the same counter-party. Thus, the
basis of the contributed option(s) is reduced,
both in the hands of the contributing partners and
Evergreen Trading, LLC. Consequently, any corre-
sponding claimed increases in the outside basis in
Evergreen Trading, LLC resulting from the contri-
butions of the foreign currency option(s) are
disallowed.
8. It is determined that the adjusted bases of the
long call positions (purchased call options), zero
coupon notes, and other contributions purportedly
contributed by the partners to Evergreen Trading,
LLC has not been established under I.R.C. § 723.
It is consequently determined that the partners of
Evergreen Trading, LLC have not established ad-
justed bases in their respective partnership in-
terests in an amount greater that zero (-0-).
9. It is further determined that, in the case of a
sale, exchange, or liquidation of Evergreen Trad-
ing, LLC partners’ partnership interests, neither
the purported partnership nor its purported part-
ners have established that the bases of the part-
ners’ partnership interests were greater than zero
for purposes of determining gain or loss to such
partners from the sale, exchange, or liquidation
of such partnership interest.
10. Accuracy-Related Penalties
It is determined that the adjustments of partner-
ship items of Evergreen Trading, LLC are attribut-
able to a tax shelter for which no substantial
authority has been established for the position
taken, and for which there was no showing of rea-
sonable belief by the partnership or its partners
that the position taken was more likely than not
the correct treatment of the tax shelter and re-
lated transactions. In addition, all of the
underpayments of tax resulting from those adjust-
ments of partnership items are attributable to, at
a minimum, (1) substantial understatements of
- 9 -
income tax, (2) gross valuation misstatement(s),
or (3) negligence or disregarded rules or regula-
tions. There has not been a showing by the part-
nership or any of its partners that there was a
reasonable cause for any of the resulting under-
payments, that the partnership or any of its part-
ners acted in good faith, or that any other excep-
tions to the penalty apply. It is therefore de-
termined that, at a minimum, the accuracy-related
penalty under Section 6662(a) of the Internal
Revenue Code applies to all underpayments of tax
attributable to adjustments of partnership items
of Evergreen Trading, LLC. The penalty shall be
imposed on the components of underpayment as fol-
lows:
A. a 40 percent penalty shall be imposed on
the portion of any underpayment attribut-
able to the gross valuation misstatement as
provided by Sections 6662(a), 6662(b)(3),
6662(e), and 6662(h) of the Internal Reve-
nue Code.
B. a 20 percent penalty shall be imposed on
the portion of the underpayment attribut-
able to negligence or disregard of rules
and regulations as provided by Sections
6662(a), 6662(b)(1), 6662(c) of the Inter-
nal Revenue Code.
C. a 20 percent penalty shall be imposed on
the underpayment attributable to the sub-
stantial understatement of income tax as
provided by sections 6662(a), 6662(b)(2),
and 6662(d) of the Internal Revenue Code.
D. a 20 percent penalty shall be imposed on
the underpayment attributable to the sub-
stantial valuation misstatement as provided
by Sections 6662(a), 6662(b)(3), and
6662(e) of the Internal Revenue Code.
[Reproduced literally.]
On September 26, 2005, respondent issued respective notices
of deficiency to petitioners in these cases for the taxable years
1999 and 2000. In those respective notices, respondent made the
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following determinations:5
1. The $11,606,771 and $15,301,146 grantor trust
losses for 1999 and 2000 flowed from Evergreen
Trading to the Arlene Nussdorf Trust then to your
1040s, interest income in the amounts of ($2,488)
and ($2,842) for 1999 and 2000 flowed from Ever-
green Trading to the Arlene Nussdorf Trust then to
your 1040s, Investment interest of $83,527 and
$195,776 for 1999 and 2000 flowed from Evergreen
Trading to the Arlene Nussdorf Trust then to your
1040s, Short term capital gain of ($324) for 2000
flowed from Evergreen Trading to the Arlene
Nussdorf Trust then to your 1040. All of these
items are disallowed because you have failed to
establish (1) that the purported loss was sus-
tained in any amount by either you or any entity
in which you held an interest, (2) that the trans-
action purportedly generating the loss in question
was entered into for profit within the meaning of
I.R.C. Section 165(c)(2), or (3) that any portion
of the loss in question is allowable as a deduc-
tion under any other provision of the Internal
Revenue Code. You have also failed to establish
that, even if loss was sustained and would other-
wise be deductible, any deduction relating to the
loss is not specifically limited or disallowed by
any provision of the Internal Revenue Code, in-
cluding without limitation §§165, 183, 212,
704(d), 1366(d), or 465.
2. It is further determined that to the extent the
loss in question is attributable to an investment
in offsetting options, the loss is disallowed
because the transactions were entered into for
purposes of tax avoidance. The transactions giv-
ing rise to the loss, including the formation of
the purported partnership, Arlene Nussdorf Trust’s
acquisition of an interest in the partnership, the
purchase of the offsetting options, the subsequent
5
For convenience, we quote from the notice of deficiency
that respondent issued to petitioner Arlene Nussdorf in the case
at docket No. 24289-05. That notice of deficiency is virtually
the same as the respective notices of deficiency that respondent
issued to petitioners in the cases at docket Nos. 24297-05 and
24301-05.
- 11 -
transfer of the options by the Arlene Nussforf
Trust to a partnership in return for a partnership
interest, the purchase of assets by the partner-
ship, and the distribution of those assets to the
Arlene Nussdorf Trust in complete liquidation of
it’s partnership interest, and the subsequent sale
of those assets to generate at a loss, all within
a period of less than 5 months, had no business
purpose other than tax avoidance, lacked economic
substance, and, in fact and substance, constitutes
an economic sham for federal income tax purposes.
As such, any loss incurred in connection with the
transactions in question are not deductible.
3. It is further determined that the loss deduction
claimed on your 1999 and 2000 federal income tax
return is disallowed because the Evergreen Trading
partnership with reference to which you determined
basis in the Euros sold is a sham and should not
be recognized for federal income tax purposes.
4. It is further determined that the deductions re-
ferred to under 1) claimed as a loss for tax years
1999 and 2000 are disallowed because you have
failed to establish the basis in the partnership
interests in Evergreen Trading held by the Arlene
Nussdorf Trust was greater than zero. You have
failed to establish the basis in the Euros sold or
disposed of was greater than zero ($0) for pur-
poses of determining the amount of the purported
loss under §165(b).
5. It is further determined that the deduction for
the loss claimed is disallowed to the extent that
the provisions of Chapter 1, Subchapter K of the
Internal Revenue Code were used to calculate basis
in the Property sold. Evergreen Trading was
formed or availed of in connection with a transac-
tion or transactions in taxable years 1999 and
2000 a principal purpose of which was to reduce
substantially the present value of your federal
tax liability in a manner that is inconsistent
with the intent of Subchapter K of the Internal
Revenue Code. The manner in which you and Ever-
green Trading accounted for the foreign currency
option transactions in question violated the in-
tent of Subchapter K. Accordingly, the parties’
accounting for the transactions should be
- 12 -
adjusted, pursuant to the authority contained in
Treas. Reg. § 1.701-2, to achieve results that are
consistent with the intent of subchapter K by
ignoring the existence of the partnership, or
treating transactions purportedly engaged in by
the partnership as engaged in directly by the
purported partners.
6. It is further determined, in the alternative, that
the loss claimed on your 1999 and 2000 federal
income tax returns should be decreased by the
items listed under 1) in the amount of $11,687,810
and $15,495,756 to reflect the limitation on
Arlene Nussdorf Trust’s adjusted basis in it’s
partnership interests resulting from it’s contri-
bution of it’s position(s) in the option transac-
tion(s) to the partnerships, pursuant to Treas.
Reg. § 1.752-06T.
7. It is further determined, in the alternative, that
the loss claimed on your 1999 and 2000 federal
income tax return should be decreased in the
amount of $11,687,810 and $15,495,756 to limit any
loss incurred by you and the partnership in con-
nection with the option transaction to the amount
actually at risk in the transaction, pursuant to
Internal Revenue Code § 465(b)(4).
8. It is further determined, in the alternative, that
the loss claimed on your 1999 and 2000 federal
income tax return should be decreased by the
amount of $11,687,810 and $15,495,756 to reflect
the fact that the amount invested in the option
transaction purportedly generating the losses
claimed represents a single, unitary investment of
$26,700,190 in a single option position rather
than a net investment in the same amount in off-
setting option positions.
9. It is further determined that no deduction is
allowed for any legal, accounting, consulting and
advisory fees claimed since you failed to estab-
lish that such expenditures were incurred, and if
incurred, are deductible under any provision of
the Internal Revenue Code, including but not lim-
ited to Internal Revenue Code §§ 183 and 212.
- 13 -
10. The partnership’s primary purpose was for the
creation of tax losses. The tax losses reported
in the 1999 tax year are straddle transactions as
defined by IRC 1092. As such the losses are sub-
ject to offsetting of the unrecognized gains re-
ported in the 2000 tax year. Additionally, the
partnership is disregarded for federal tax pur-
poses with all transactions being reversed and
previously reported inflated basis if the partners
relating to contribution of offsetting long and
short currency positions are disregarded along
with reported capital losses, investment interest
expense, distributed property and capital contri-
butions reversed in their entirety and all trans-
actions are treated as having been engaged in by
the partners directly. [Reproduced literally.]
Petitioners in these cases timely filed petitions in re-
sponse to the respective notices of deficiency that respondent
issued to them. In those respective petitions, petitioners
alleged in pertinent part that petitioners invoked “the jurisdic-
tion of this Court primarily for the purpose of confirming that
the Notice [of deficiency] is invalid and no jurisdiction exists”
and that “The adjustments and penalties in the Notice [of defi-
ciency] constitute partnership and/or affected items * * * under
Code Sections 6221 and 6231.”6 Petitioners further alleged in
pertinent part in the respective petitions in these cases:
e. No partnership proceeding has yet been
commenced under Section 6226, much less
concluded.
f. On the same day Respondent issued the
6
For convenience, we quote from the petition filed in the
case at docket No. 24289-05. That petition is virtually the same
as the respective petitions filed in the cases at docket Nos.
24297-05 and 24301-05.
- 14 -
Notice, September 26, 2005, Respondent
also issued a notice of Final Partner-
ship Administrative Adjustment
(“FPAA”) to Evergreen Trading.
g. Consistent with the precedent of this
Court in, inter alia, Maxwell, supra,
the ostensible Notice is a nullity.
Around February 21, 2006, petitioners Glenn Nussdorf and
Claudine Strum in the case at docket No. 24297-05 filed on behalf
of GN Investments, LLC,7 a partner other than the tax matters
partner of Evergreen Trading, a complaint in the United States
Court of Federal Claims that alleges error in the adjustments
made in the FPAA issued with respect to Evergreen Trading for the
taxable years 1999 and 2000. That case is still pending in that
Court.
Discussion
In respondent’s respective motions, respondent asks the
Court to dismiss these cases for lack of jurisdiction on the
ground that the respective notices of deficiency for the taxable
years 1999 and 2000 that respondent issued to petitioners in
these cases are invalid. That is because, according to respon-
dent, those notices contain only determinations that constitute
partnership items, as defined in section 6231(a)(3), or affected
items, as defined in section 6231(a)(5), relating to Evergreen
7
GN Investments, LLC, is a flowthrough entity that peti-
tioner Glenn Nussdorf used in order to become a member of or
partner in Evergreen Trading.
- 15 -
Trading.8
In petitioners’ respective motions, petitioners ask the
Court to dismiss these cases for lack of jurisdiction as to all
the determinations in the respective notices of deficiency for
the taxable years 1999 and 2000 that respondent issued to them
except the determination set forth in paragraph 8 of those
notices.9 That paragraph stated:10
It is further determined, in the alternative, that the
loss claimed on your 1999 and 2000 federal income tax
return should be decreased by the amount of $11,687,810
and $15,495,756 to reflect the fact that the amount
invested in the option transaction purportedly generat-
ing the losses claimed represents a single, unitary
investment of $26,700,190 in a single option position
rather than a net investment in the same amount in
offsetting option positions.
In support of petitioners’ position in petitioners’ respec-
tive motions that the Court has jurisdiction over the above-
quoted determination, petitioners argue:11
8
With respect to the affected items, respondent points out
that the partnership proceeding for the taxable years 1999 and
2000 with respect to Evergreen Trading is currently pending in
the United States Court of Federal Claims.
9
With the exception of the determination set forth in para-
graph 8 of the respective notices of deficiency in question,
petitioners agree with respondent that the determinations in
those notices constitute partnership items, as defined in sec.
6231(a)(3), or affected items, as defined in sec. 6231(a)(5),
relating to Evergreen Trading.
10
See supra note 5.
11
For convenience, we quote from petitioner’s motion in the
case at docket No. 24289-05. That motion is virtually the same
(continued...)
- 16 -
10. The determination of the cost basis of the
Purchased Euro Option in the hands of Petitioner is a
pure nonpartnership item that must be determined in
this individual proceeding. Although that cost basis
(along with the cash contributed) becomes the basis of
* * * [the partner’s] partnership interest [in Ever-
green Trading], the later contribution does not convert
a nonpartnership issue into a partnership item. Just
as if Ms. Nussdorf [petitioner in the case at docket
No. 24289-05] had purchased a partnership interest from
an outsider, the determination of Ms. Nussdorf’s cost
basis in her Purchased Euro Option is irrelevant to any
other partner and cannot be determined by examining the
partnership books. * * *
11. The cost basis of the Purchased Euro Option
in the hands of Ms. Nussdorf must be determined by
looking to I.R.C. § 1012 and the authorities thereunder
* * *.
12. An issue concerning the cost basis of prop-
erty in the hands of the taxpayer, pre-contribution,
inevitably turns on law and facts unique to the tax-
payer and the particular property in question, which
are the hallmark of “nonpartnership items.” * * * To
consider issues “peculiar to a single partner” as
partnership items, even those relating to partnership
gains or losses, would “blur or erase . . .the distinc-
tion between proceedings involving partnership items
and those involving nonpartnership items” and “would be
contrary to the system of separate treatment of part-
nership and nonpartnership issues Congress established
by enacting TEFRA.” [Reproduced literally, citations
omitted.]
Respondent counters:12
11
(...continued)
as petitioners’ respective motions in the cases at docket Nos.
24297-05 and 24301-05.
12
For convenience, we quote from respondent’s response to
petitioner’s motion in the case at docket No. 24289-05. That
response is virtually the same as respondent’s respective re-
sponses to petitioners’ respective motions in the cases at docket
Nos. 24297-05 and 24301-05.
- 17 -
5. The petitioner contends the explanatory lan-
guage in paragraph eight[13] allows the Court in this
proceeding to determine the pre-contribution cost basis
of a purchased Euro option in the hands of petitioner.
They contend that the basis of the purchased Euro
option before its contribution to the partnership is a
nonpartnership item that must be determined in this
partner-level proceeding and that such basis should be
determined without considering the effect on the basis
of the offsetting sold Euro option. In effect, peti-
tioner contends the offsetting options should not be
integrated.
6. Petitioner’s contentions are wrong. The
statutory notice of deficiency, including paragraph
number eight, challenge[s] the so-called Son of Boss
transaction that involve[s] purported contribution of
an option spread to a partnership. This contribution
was an integral and vital part of the transaction.
Petitioner used the contribution to inflate her basis
in the partnership. Petitioner then attached this
inflated basis to the assets distributed to petitioner
by the partnership. See I.R.C. § 732(b).
7. Section 6231(a)(3) provides that the term
“partnership item” includes any item required to be
taken into account for the partnership’s taxable year
under Subtitle A to the extent provided by the regula-
tions. * * * the purported partnership here was re-
quired under Subtitle A of the Code to determine the
partners’ basis in the contributed options. See I.R.C.
§ 723 (partnership receives carryover basis from part-
ner). Treas. Reg. § 301.6231(a)(3)-1(c)(2)(iv) makes
this carryover basis a partnership item under section
6231(a)(3). Section 6221 requires such partnership
item to be determined in a partnership proceeding
rather than in a deficiency proceeding. * * * Contrary
to petitioner’s contention, the status of an item as a
partnership item depends solely on whether the partner-
ship must determine the item under Subtitle A and
whether the regulations make such an item a partnership
item, not on where the partnership has to look to find
13
Respondent indicates in respondent’s respective motions
that the determination set forth in paragraph 8 of the respective
notices of deficiency in question “is commonly referred to as the
integration argument”.
- 18 -
such information.
8. In determining its basis in the contributed
options, the purported partnership was required to take
into account the amount and character of the contribu-
tion, which included the fair market value and basis of
the contribution, whether the obligation leg was a
“liability” assumed by the partnership, and whether the
legs of the options needed to be aggregated. * * *
[Citations omitted.]
We agree with respondent. Section 6231(a)(3) defines the
term “partnership item” to mean
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 regula-
tions prescribed by the Secretary provide that, for
purposes of this subtitle, such item is more appropri-
ately determined at the partnership level than at the
partner level.
Section 6231(a)(4) defines the term “nonpartnership item” to
mean “an item which is (or is treated as) not a partnership
item.”
Section 6231(a)(5) defines the term “affected item” to mean
“any item to the extent such item is affected by a partnership
item.”
Section 723 provides in pertinent part that the basis of
property contributed to a partnership by a partner is the ad-
justed basis of such property to the contributing partner at the
time of the contribution.14 Thus, in order for a partnership to
14
Sec. 1.723-1, Income Tax Regs., promulgated under sec. 723
further provides in pertinent part:
(continued...)
- 19 -
determine, as required by section 723, its basis in the property
that a partner contributed to it, the partnership is required to
determine the basis of such partner in such property. In making
those determinations, the partnership is required, inter alia, to
determine the character of any property received by the partner-
ship, such as whether it is a contribution or a loan.
In the instant cases, in order for Evergreen Trading to
determine, as required by section 723, its respective bases in
the properties that its partners purportedly contributed to it,
Evergreen Trading was required to determine the respective bases
of such partners in such properties. In making those determina-
tions, Evergreen Trading was required, inter alia, to determine
the character of any property that Evergreen Trading received
from each member, such as whether it was a contribution or a loan
and whether any such property received from each member should be
aggregated with other property received from each such member.
The following regulations promulgated under section
6231(a)(3), which defines the term “partnership item”, provide
that the above-described items relating to the purported contri-
butions of certain properties to Evergreen Trading by its respec-
14
(...continued)
Since such property [contributed to the partnership by
a partner] has the same basis in the hands of the
partnership as it had in the hands of the contributing
partner, the holding period of such property for the
partnership includes the period during which it was
held by the partner. * * *
- 20 -
tive members, with respect to which Evergreen Trading was re-
quired make certain determinations, are partnership items.
Section 301.6231(a)(3)-1(a)(4), Proced. & Admin. Regs., states
that the following items, inter alia, which are required to be
taken into account under subtitle A of the Code, are more appro-
priately determined at the partnership level than at the partner
level and therefore are partnership items:15
(1) The partnership aggregate and each partner’s
share of each of the following:
* * * * * * *
(v) Partnership liabilities (including
determinations with respect to the amount of
the liabilities, whether the liabilities are
nonrecourse, and changes from the preceding
taxable year); * * *
* * * * * * *
(4) Items relating to the following transactions,
to the extent that a determination of such items can be
made from determinations that the partnership is re-
quired to make with respect to an amount, the character
of an amount, or the percentage interest of a partner
in the partnership, for purposes of the partnership
books and records or for purposes of furnishing infor-
mation to a partner:
(i) Contributions to the partnership * * *
15
Sec. 301.6231(a)(3)-1(b), Proced. & Admin. Regs., further
provides:
(b) Factors that affect the determination of
partnership items.-– The term “partnership item” in-
cludes the accounting practices and the legal and
factual determinations that underlie the determination
of the amount, timing, and characterization of items of
income, credit, gain, loss, deduction, etc. * * *
- 21 -
Section 301.6231(a)(3)-1(c), Proced. & Admin. Regs., which
provides illustrations of section 301.6231(a)(3)-1(a)(4), Proced.
& Admin. Regs., states in pertinent part:
(c) Illustrations.--(1) In general.-- This para-
graph (c) illustrates the provisions of paragraph
(a)(4) of this section [301.6231(a)(3)-1]. The deter-
minations illustrated in this paragraph (c) that the
partnership is required to make are not exhaustive;
there may be additional determinations that the part-
nership is required to make which relate to a transac-
tion listed in paragraph (a)(4) of this section. The
critical element is that the partnership needs to make
a determination with respect to a matter for the pur-
poses stated; failure by the partnership actually to
make a determination (for example, because it does not
maintain proper books and records) does not prevent an
item from being a partnership item.
(2) Contributions.-– For purposes of its books and
records, or for purposes of furnishing information to a
partner, the partnership needs to determine:
(i) The character of the amount re-
ceived from a partner (for example, whether
it is a contribution, a loan, or a repayment
of a loan);
* * * * * * *
(iv) The basis to the partnership of
contributed property (including necessary
preliminary determinations, such as the part-
ner’s basis in the contributed property).
To the extent that a determination of an item relating
to a contribution can be made from these and similar
determinations that the partnership is required to
make, therefore, that item is a partnership item. To
the extent that the determination requires other infor-
mation, however, that item is not a partnership item.
For example, it may be necessary to determine whether
contribution of the property causes recapture by the
contributing partner of the investment credit under
section 47 in certain circumstances in which that
determination is irrelevant to the partnership.
- 22 -
We conclude that the following determinations of certain
items relating to the purported contributions of the Euro options
in question to Evergreen Trading by its respective members can be
made from determinations that Evergreen Trading was required to
make for purposes of Evergreen Trading’s books and records or for
purposes of furnishing information to each member: The character
of any property that Evergreen Trading received from each member,
such as whether any such property received from each member was a
contribution or a loan16 and whether any such property should be
aggregated with other property received from each such member,
and the basis to Evergreen Trading of any property contributed to
it by each member, including necessary preliminary determina-
tions, such as the basis of each such member in such property.
See sec. 301.6231(a)(3)-1(a)(4), -1(c)(2), Proced. & Admin. Regs.
We further conclude that none of such determinations relating to
the purported contributions of the Euro options in question to
Evergreen Trading by its respective members required information
other than the information that Evergreen Trading was required to
use in making such determinations that it was required to make
for purposes of its books and records or for purposes of furnish-
ing information to a member. See id.
16
In determining whether any property that Evergreen Trading
received from each member was a contribution or a liability,
Evergreen Trading was required to determine whether the so-called
obligation leg (i.e., the short position) of the Euro options in
question was a liability that Evergreen assumed.
- 23 -
We hold that the determination set forth in paragraph 8 of
the respective notices of deficiency that respondent issued to
petitioners in these cases relates to certain partnership items
described above. We further hold that we do not have jurisdic-
tion over those items. E.g., Trost v. Commissioner, 95 T.C. 560
(1990); Maxwell v. Commissioner,
87 T.C. 783 (1986). We also
hold, and respondent and petitioners agree, that we do not have
jurisdiction over the remaining determinations set forth in those
respective notices because those remaining determinations relate
to partnership items, e.g., Trost v.
Commissioner, supra; Maxwell
v.
Commissioner, supra, or affected items, e.g., GAF Corp. &
Subs. v. Commissioner,
114 T.C. 519 (2000); N.C.F. Energy Part-
ners v. Commissioner,
89 T.C. 741 (1987).
We have considered all of the contentions and arguments of
petitioners that are not discussed herein, and we find them to be
without merit and/or irrelevant.
To reflect the foregoing,
Orders granting respondent’s
respective motions and denying
petitioners’ respective motions and
dismissing these cases for lack of
jurisdiction will be entered.
