UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SEAVIEW TRADING, LLC, AGK No. 20-72416 INVESTMENTS, LLC, TAX MATTERS PARTNER, Tax Ct. No. Petitioner-Appellant, 1837-11

v. OPINION COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Argued and Submitted En Banc December 13, 2022 Pasadena, California

Filed March 10, 2023

Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Morgan Christen, Paul J. Watford, Mark J. Bennett, Danielle J. Forrest, Patrick J. Bumatay, Jennifer Sung, Holly A. Thomas, Salvador Mendoza, Jr., and Roopali H. Desai, Circuit Judges. 2 SEAVIEW TRADING, LLC V.CIR

Opinion by Judge Watford; Dissent by Judge Bumatay

SUMMARY *

Tax

Affirming the Tax Court’s decision concluding that the Internal Revenue Service’s notice of final partnership administrative adjustment was timely, the en banc court held that neither Seaview Trading LLC’s faxing a copy of their delinquent 2001 tax return to an IRS revenue agent in 2005, nor mailing a copy to an IRS attorney in 2007, qualified as a “filing” of the partnership’s return, and therefore the statute of limitations did not bar the IRS’s readjustment of the partnership’s tax liability. In July 2005, an IRS revenue agent informed Seaview that the agency had no record of receiving the partnership’s return for the 2001 tax year. The revenue agent asked Seaview to send him retained copies of any 2001 return that Seaview claimed to have filed as well as proof of mailing. Seaview’s accountant complied with this request in September 2005 by faxing a copy of its 2001 Form 1065 to the revenue agent’s office in South Dakota, along with a certified mail receipt for an envelope that had been mailed to the Ogden Service Center in July 2002. Seaview initially claimed that it included its 2001 partnership return in that

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SEAVIEW TRADING, LLC V. CIR 3

envelope, which contained the tax return of another related entity, but Seaview conceded on appeal that it could not prove that the IRS received its 2001 return as part of that mailing. In July 2007, after the IRS commenced an audit of Seaview, Seaview’s counsel mailed the same copy of its 2001 return to the office of an IRS attorney in Minnesota. Neither the IRS revenue agent in South Dakota nor the IRS attorney in Minnesota forwarded the copies of Seaview’s 2001 partnership return to the relevant Service Center in Ogden, Utah, for processing. Nor did Seaview itself forward copies of its return to the Ogden Service Center at that time. In October 2010, the IRS issued a notice of final partnership administrative adjustment concerning Seaview’s 2001 return, in which it disallowed the $35.5 million loss Seaview had claimed. Through its tax matters partner, Seaview filed a petition in the United States Tax Court challenging the agency’s adjustment. Seaview conceded that it was not entitled to claim the $35.5 million loss, but it argued that the IRS’s disallowance of the loss was untimely. 26 U.S.C. § 6230(i) (2000), which was applicable during the period in question, provided that a partnership’s return “shall be filed . . . at such time, in such manner, and at such place as may be prescribed in regulations.” The implementing regulations, 26 C.F.R. § 1.6031(a)- 1(e)(2001), in turn, provided that “[t]he return of a partnership must be filed with the service center prescribed in the relevant IRS revenue procedure, publication, form, or instructions to the form”