Read the opinion: AHG Investments LLC [PDF 39 KB]
The IRS issued an FPAA notice determining adjustments to income on multiple grounds. The FPAA also included a 40% accuracy-related penalty under section 6662(a) for portions of the underpayments of tax resulting from adjustments of partnership items attributable to gross valuation misstatements.
The petitioning partner, in his Tax Court petition, conceded the FPAA adjustments on grounds that he was not at risk under section 465, and thus was not entitled to deduct certain losses. Later, in an amended petition, the petitioner further conceded that the FPAA adjustments were correct on the grounds that the transaction at issue did not have economic substance.
The petitioner then filed a motion for partial summary judgment regarding the 40% penalty, asserting that the penalty did not apply as a matter of law because he had conceded the correctness of the proposed adjustments on grounds unrelated to the valuation or basis.
The Tax Court today denied the motion for summary judgment and, in this reviewed opinion, agreed with the IRS that a taxpayer may not avoid application of the gross valuation misstatement penalty merely by conceding on grounds unrelated to valuation or basis.
There were no separate dissenting or concurring opinions.
There is a split in federal circuit appeals courts on the valuation misstatement penalty issue. Both the government in Woods v. United States (Fifth Circuit) and the taxpayer in Alpha I, L.P. v. United States (Federal Circuit) have filed for a writ of certiorari requesting that the U.S. Supreme Court resolve the issue.