KROUPA, Judge.
This matter is before the Court on respondent's motion for partial summary judgment filed pursuant to Rule 121.
The following facts have been assumed solely for resolving the pending motion. Petitioner resided in Connecticut at the time he filed the petition. Petitioner filed a Federal income tax return for 2003.
Petitioner participated in tax shelters promoted by Andrew Beer (Beer) including one involving GST Partners, LP (GST).
GST filed Form 1065, U.S. Return of Partnership Income, for 2003. Respondent investigated certain option transactions in which GST engaged. Respondent requested in 2007 and in 2008 that petitioner agree to extend the applicable limitations period to assess tax attributable to petitioner's GST partnership items for 2003. Petitioner consulted with Beer about respondent's requests. Petitioner had known Beer for many years, and Beer was married to petitioner's cousin.
Beer recommended that petitioner agree to respondent's requests. Petitioner did not consult with independent legal counsel. Subsequently, petitioner and respondent timely executed agreements (collectively, consents) consistent with the provisions of section 6501(c)(4) and section 6229(b)(3) to extend the applicable limitations period to assess tax attributable to petitioner's GST partnership items for 2003.
Respondent audited the partnership return that GST filed for 2003. Respondent determined that GST engaged in tax shelter transactions. Respondent issued GST's partners a Notice of Final Partnership Administrative Adjustment (FPAA) for 2003 disallowing certain losses. Petitioner elected under section 6223(e)(3)(B) to convert his GST partnership items to nonpartnership items (converted items) for 2003, which extended the applicable limitations period to assess tax with respect to the converted items. See sec. 6229(f). Respondent thereafter issued petitioner a Notice of Adjustment (adjustment notice) for 2003. Respondent issued both the FPAA and the adjustment notice within the applicable limitations period as extended by the consents and the conversion of petitioner's GST partnership items to nonpartnership items.
Petitioner timely filed a petition for redetermination with this Court. Respondent then filed this motion for partial summary judgment.
We are asked to decide whether respondent is entitled to partial summary judgment that the statute of limitations does not bar assessment of tax attributable to petitioner's converted items for 2003. Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. See, e.g.,
Respondent argues that the FPAA and the adjustment notice were issued before the applicable limitations period expired and therefore the statute of limitations does not bar the assessment of tax attributable to petitioner's converted items. Petitioner argues that the FPAA and the adjustment notice were untimely because the consents he executed are invalid on grounds of undue influence by Beer. Accordingly, respondent is entitled to partial summary judgment if we hold that there are no issues of material fact and that as a matter of law the consents are valid and not obtained through undue influence.
We apply general contract principles in interpreting, applying and deciding the enforceability of waiver documents. See
Even if we assume that Beer had the requisite domination over or relation to petitioner, petitioner has failed to allege facts sufficient to show that Beer used unfair persuasion to induce his assent to the consents. The ultimate question with unfair persuasion is whether the party's assent was produced by means that seriously impaired the party's free and competent exercise of judgment.
Petitioner merely alleges that he was unduly influenced. He failed to allege facts sufficient to show that Beer unfairly persuaded or influenced him to agree to the consents and thus cannot establish a necessary element of undue influence. Consequently, respondent is entitled to partial summary judgment that the consents were not obtained through undue influence by Beer. See
We hold that there is no genuine issue of material fact and that, as a matter of law, the consents were not the product of undue influence. We therefore conclude that respondent is entitled to judgment as a matter of law that the statute of limitations does not bar the assessment of tax attributable to the converted items for 2003. Accordingly, we shall grant respondent's motion for partial summary judgment.
We have considered all arguments the parties made in reaching our holdings, and, to the extent not mentioned, we find them moot, irrelevant, or without merit.
To reflect the foregoing,