Bush v. United States

United States Court of Appeals
for the Federal Circuit
______________________

GORDON W. BUSH, REOLA BUSH,
LAWRENCE R. CATUZZI, BARBARA V. CATUZZI,
GORDON R. COOKE, JENNIFER L. COOKE,
GOPALA K. DEREBAIL, MEMALATHA DEREBAIL,
ALBERT V. GUDE, DONNA C.GUDE,
LAWRENCE S. LEWIN, ROBERT V. MCQUILLAN,
CATHERINE D. MCQUILLAN, KIKUO NAKAHARA,
JEANETTE T. NAKAHARA (DECEASED),
LESLIE A. SPITZACK, MARY C. SPITZACK,
BARRY S. STRAUCH, AND EVELYN M. STRAUCH,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________

2012-5051
______________________

Appeal from the United States Court of Federal
Claims in case no. 10-CV-661, Judge Nancy B. Firestone.
______________________

Decided: May 30, 2013
______________________

THOMAS E. REDDING, Redding & Associates, P.C., of
Houston, Texas, argued for plaintiff-appellant. With him
on the brief was SALLIE E. GLADNEY.
2 BUSH v. US

BETHANY B. HAUSER, Attorney, Tax Division, United
States Department of Justice, of Washington, DC, argued
for defendant-appellee. With her on the brief were
KATHRYN KENEALLY, Assistant Attorney General, and
RICHARD FARBER, Attorney.
______________________
Before RADER, Chief Judge, NEWMAN and MAYER,
Circuit Judges.
NEWMAN, Circuit Judge.
The appellants are nineteen individual taxpayers who
were partners of the Denver-based Dillon Oil Technology
Partnership in tax years 1983 and 1984. In 2003, after
over a decade of litigation, the IRS assessed penalties in
accordance with now repealed I.R.C. §6621(c), which
penalizes “substantial” underpayments of tax “attributa-
ble to tax motivated transactions” (“TMTs”). The appel-
lants paid the tax and penalties in 2004, and, in 2006,
initiated a refund suit in the United States Court of
Federal Claims. The court dismissed the appellants’ suit
for lack of subject matter jurisdiction under the Tax
Equity and Fiscal Responsibility Act (“TEFRA”), 1 I.R.C.
§7422(h), which provides that individual partners may
not bring tax challenges relating to subject matter “at-
tributable to a partnership item.” Rather, such claims
must be brought in a partnership-level suit by the part-
nership representative or Tax Matters Partner (“TMP”).
On this ground, we affirm the dismissal. The appellants’
claim is an impermissible collateral attack.
BACKGROUND
In tax years 1983 and 1984, the Dillon Oil partnership
reported significant losses on its oil and gas technology

1 Bush v. United States, 101 Fed. Cl. 791 (Fed. Cl.
2011).
 BUSH v. US 3
investments. These losses were passed through to the
partners including appellants, who claimed the losses as
deductions on their personal income tax returns.
In 1987 and 1988, the IRS determined, with respect to
the partnership tax returns, that most of the Dillon Oil
losses claimed in 1983 and 1984 were not deductible, and
issued Final Partnership Administrative Adjustments
(“FPAAs”) stating several reasons for its decision, includ-
ing:
(a) It has not been established that the underlying
events, transactions and expenditures occurred in
fact or in substance;
(b) It has not been established that the claimed
deductions originated in a trade or business or in
a transaction entered into for profit;
***
(e) It has not been established that the notes exe-
cuted by the partners in favor of the partnership
are not non-recourse, are not contingent, are not
speculative and have economic substance;
***
In the event the transactions are substantiated as
to amount and nature of the item and it is held
that the transactions have economic-substance, it
is determined that the partners are not at risk
within the meaning of Internal Revenue Code Sec-
tion 465 for any amounts in excess of those actual-
ly paid in cash to the partnership, and thus said
losses are in excess of the partners adjusted basis.
See 1983 FPAA ¶1, J.A. 67–68; see also 1984 FPAA ¶1,
J.A. 162–63 (stating similar reasons).
The IRS also sent FPAAs to other similarly situated
Denver-based partnerships. Dillon Oil, along with these
4 BUSH v. US
partnerships, 2 filed consolidated Tax Court suits for each
tax year under the caption Vulcan Oil Technology Part-
ners v. Commissioner. The petitions alleged a number of
errors by the IRS, including that “the Commissioner has
erroneously proposed an addition to tax under Code
Section 662l(c), . . .” Tax Court Petition ¶4(B), No. 21530–
87 (July 2, 1987); see also Tax Court Petition ¶¶3, 4(N),
No. 16768–88 (June 30, 1988) (“it is error to impose
penalties”).
Dillon Oil’s Tax Court cases were stayed pending reso-
lution of Krause v. Commissioner, a test case for over
2,000 related cases. Krause involved oil and gas transac-
tions, primarily trades in debt obligations and license
fees, claimed as losses on partners’ tax returns. After a
fifteen week trial, the Krause court found that these
transactions lacked “profit objective” as required of de-
ductible losses under I.R.C. §183, and disallowed the
losses. Krause v. C.I.R., 99 T.C. 132, 176 (1992). The
court also affirmed the IRS’s imposition of TMT penalty
interest under §6621(c) based on the transactions, stating
that
By regulation, among the types of transactions
that are considered to be tax-motivated transac-
tions within the meaning of section 6621(c) are
those with respect to which the related tax deduc-
tions are disallowed under section 183 for lack of
profit objective. In light of our findings as to the
lack of profit objective, petitioners are liable for
increased interest under section 6621(c).

2 Vulcan Oil Technology Partners; Vanguard Oil
Technology Partners; Drake Oil Technology Partners;
Derringer Oil Technology Partners 1981; Derringer Oil
Technology Partners 1982; Crowne Oil Technology Part-
ners; and Carlton Oil Technology Partners, Ltd.
 BUSH v. US 5
Id. at 180 (citations omitted), aff’d sub nom. Hildebrand v.
Commissioner, 28 F.3d 1024, 1028 (10th Cir. 1994).
The Krause decision had a predictable effect on the
Vulcan Oil suits. In 1998, several Vulcan Oil partner-
ships moved the Tax Court to require the IRS to settle on
pre-Krause terms. See Vulcan Oil Tech. Partners v.
C.I.R., 110 T.C. 153 (1998). The terms the partnerships
sought would have permitted tax deductions
for the amount of cash that investors had invested
in the [ ] tax shelters and no additions to tax or
penalties . . . other than increased interest under
section 6621(c) or its predecessor section 6621(d).
Id. at 155. But the partnerships’ motions were denied as
untimely. Id. at 164. The Tax Court held that the part-
ners who had not settled their cases with the IRS prior to
the decision in Krause “were to be bound by the opinion in
Krause.” Id. at 154–55.
After this ruling, Dillon Oil’s TMP “disappeared” and
ceased performing his duties to the partners. Appellants’
Br. 11. On November 28, 2001, and December 20, 2001,
the IRS moved to dismiss the Vulcan Oil suits for lack of
prosecution. The motions stated that the IRS would make
adjustments to Dillon Oil’s FPAA in accordance with
Krause. The Tax Court sent Orders to Show Cause to the
Dillon Oil partners, asking “why this case should not be
dismissed for failure properly to prosecute and that there
are adjustments to partnership items [consistent with
Krause].” Show Cause Order 2. The Dillon Oil partners
did not respond, and on June 13, 2002, the Vulcan Oil
suits were dismissed. E.g., Order of Dismissal and Deci-
sion, No. 16768–88 (June 13, 2002). The Dillon Oil part-
ners did not appeal.
6 BUSH v. US
Following the Vulcan Oil dismissal, the IRS sent
Form 4549A to the Dillon Oil partners. 3 The Form stated
that the partners would be assessed enhanced penalty
interest under I.R.C. §6621(c) for tax years 1983 and
1984. It identified the amount of underpayment subject
to TMT penalty interest, and stated that TMT penalty
interest would be assessed at “120%”. 4 Appellants paid
the penalty interest in 2004, with the last payment made
no later than October 18, 2004.
On April 5, 2006, the appellants initiated this lawsuit
in the Court of Federal Claims. The complaint alleged
that Krause “was wrong as a matter of law,” and that the
Dillon Oil partners “are not bound by [its] outcome.”
Compl. ¶¶21(j), 32(j). The government moved to dismiss
for lack of jurisdiction, citing this court’s decisions in
Keener v. United States, 551 F.3d 1358 (Fed. Cir. 2009),

3 E.g., Letter to Gordon and Jennifer Cooke con-
cerning tax year 1983, J.A. 290–93; Letter to Gordon and
Jennifer Cooke concerning tax year 1984, J.A. 294–98.
The appellants stipulated that the outcome of the Cookes’
penalty interest claims would bind the penalty interest
claims of all other plaintiffs/appellants. Joint Stipulation,
Bush v. United States, No. 10-cv-661-NBF, (Fed. Cl. Jan.
13, 2011), ECF. No. 19
4 Appellants argue that the Forms they received did
not “impart enough information to give the taxpayer[s]
fair notice” of their TMT obligations because the Forms
erroneously computed the interest due as “$0.00.” Reply
Br. 20–21. But the appellants are incorrect in their
assertion that “[n]owhere do the Forms 4549A state the
actual rate(s) the IRS will use to assess penalty interest.”
Reply Br. 21. To the contrary, the Forms expressly stated
that “TMT interest will accrue and be assessed at 120% of
underpayment in accordance with IRC 6621(c).” See J.A.
292, 296.
 BUSH v. US 7
and Prati v. United States, 603 F.3d 1301 (Fed. Cir. 2010).
The government also stated that “the substantive ques-
tion of whether the Dillon Oil partnership entered into a
tax-motivated transaction has already been answered” in
the Vulcan Oil suit. Gov’t Mot. to Dismiss 12, ECF No.
28. The appellants countered that because Krause was
wrongly decided, “no TMT determinations were ever
made.” Taxpayers’ Opp. 4, 15–16, ECF No. 37. The
appellants argued that in Keener, this court stated that
dismissal is not proper “‘when no partnership-level de-
termination has been made that the transactions were tax
motivated.’” Id. 3–4 (quoting 551 F.3d at 1367).
The Court of Federal Claims granted the govern-
ment’s motion to dismiss, explaining that “it is clear that
the Vulcan Oil court understood that the Dillon Oil part-
nership would be bound by the Krause decision, including
the imposition of TMT penalties under §183.” 101 Fed.
Cl. 791, 797 n.9. The court further explained that
The Vulcan Oil court had previously held that
Krause would apply to non-settling partners like
the plaintiffs. The Dillon Oil partnership TMP
had an opportunity to challenge those calculations
at the partnership level by objecting to the show
cause order, but elected not to object. At its core,
the plaintiffs’ objection is to the IRS’s and Vulcan
Oil court’s application of Krause to the Dillon Oil
partnership, a partnership-level issue.
. . . The plaintiffs’ arguments regarding the
Krause decision and the Krause court’s misappli-
cation of §183 plainly would require this court to
examine the Dillon Oil partnership transactions
to determine if the transactions identified in the
modified calculations are not covered by §183.
Id. at 798. The appellants timely appealed.
8 BUSH v. US
DISCUSSION
A dismissal for lack of subject matter jurisdiction is a
ruling of law, and receives plenary determination. Fer-
reiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir.
2003). As the party seeking the exercise of jurisdiction,
the appellants have the burden of establishing that juris-
diction exists. Keener, 551 F.3d at 1361.
TEFRA statute I.R.C. §7422(h) bars partner-level
suits “attributable to partnership items . . . except as
provided in section 6228(b) or section 6230(c).” 5 See also
Schell v. United States, 589 F.3d 1378, 1382 (Fed. Cir.
2009) (“TEFRA limits a partner’s ability to seek a refund
based on adjustments made to the partnership’s return by
depriving all courts of jurisdiction to hear partner refund
claims where the refund is ‘attributable to partnership
items’”).
Under TEFRA, the term “‘partnership item’ generally
encompasses items ‘required to be taken into account for
the partnership’s taxable year,’ and those ‘more appropri-
ately determined at the partnership level than at the
partner level.’” Schell, 589 F.3d at 1381 (quoting I.R.C.
§6231(a)(3)). A tax item is “attributable to” a partnership
item if it is “due to, caused by, or generated by” a partner-
ship item. Keener, 551 F.3d at 1365. A “nonpartnership
item” is “an item which is (or is treated as) not a partner-
ship item.” I.R.C. §6231(a)(4). “The tax treatment of
nonpartnership items requires partner-specific determi-
nations that must be made at the individual partner
level.” Duffie v. United States, 600 F.3d 362, 366 (5th Cir.

5 The appellants do not assert that either §6628(b)
or §6630(c) applies here. Reply Br. 24. Section 6228(b)
relates to partnership items that have been converted to
non-partnership items by notice of the IRS. Section
6230(c) relates to refunds arising out of “erroneous com-
putations, etc.”
 BUSH v. US 9
2010). In certain instances, partnership items “cease to
be partnership items” and become nonpartnership items,
such as when the Secretary provides notice to a partner
that an item shall be treated as a nonpartnership item, or
when the Secretary enters into a settlement agreement
with the partner with respect to such items. I.R.C.
§6231(b).
I.
Appellants state that although Dillon Oil and its
partners were bound by the opinion in Krause, 6 the IRS
had no authority to impose TMT penalty interest follow-
ing Vulcan Oil because “no partnership-level TMT was
ever made” in Krause. Appellants’ Br. 28. Appellants
state that they “do not seek to relitigate Krause,” because
Krause was a “non-TMT determination” and they had no
reason to appeal it. Reply Br. 3. For support, appellants
rely on Copeland v. Commissioner, 290 F.3d 326 (5th Cir.
2002), wherein the Fifth Circuit held that Krause erred in
imposing §6621(c) penalty interest “under §183.” Id.
The government states that “[s]ince both the FPAAs
and Krause determined that the transactions in issue
were tax-motivated, the effect of the dismissal of Dillon
Oil’s petition [in Vulcan Oil] was to make final the deter-
mination that the ·partnership transactions were tax-
motivated.” Gov’t Br. 11. According to the government,
this case is not materially different from this court’s
dismissals in Keener and Prati, because there is no mean-
ingful difference between dismissal for failure to prose-
cute as compared to a settlement between the IRS and an
individual partner, such as in Prati, 603 F.3d at 1308, and
Keener, 551 F.3d at 1360. Gov’t Br. 14.

6 See Appellants’ Br. 32 (“Dillon Oil was a Denver-
based Elektra partnership and the Cookes were unsettled
partners; therefore, the Vulcan interlocutory opinion
bound both them and the IRS to the Krause opinion.”).
10 BUSH v. US
We address the parties’ various arguments in turn.
II.
The appellants’ representation that they are not at-
tempting to relitigate Krause is not accurate. The Court
of Federal Claims correctly noted that the appellants’
complaint in this case specifically stated that Krause “was
wrong as a matter of law.” Bush, 101 Fed. Cl. at 794 n.6.
Moreover, despite the appellants’ attempts to recharacter-
ize Krause as a “non-TMT determination,” it is inescapa-
ble that “[t]he Krause Court . . . expressly imposed
enhanced interest under §6621(c)” as the Court of Federal
Claims found. Id. at 794 (citing Krause, 99 T.C. at 180).
The question that remains is whether the appellants
were bound by all of Krause, including its conclusion that
“petitioners are liable for increased interest under section
6621(c),” or whether the appellants can potentially escape
the Krause TMT finding if it was incorrectly decided. The
Court of Federal Claims held that Krause was binding in
all respects, “including the imposition of TMT penalties
under §183,” and that plaintiffs’ arguments regarding the
Krause decision would require re-examination of Dillon
Oil partnership transactions “to determine if the transac-
tions identified in the modified calculations are not cov-
ered by §183.” 101 Fed. Cl. at 798.
We agree with the Court of Federal Claims. The Vul-
can Oil court held that Dillon Oil was bound by “the
opinion” in Krause—not merely a portion of the opinion as
now interpreted by the appellants. The appellants’ oppor-
tunity to challenge Krause passed when Vulcan Oil was
dismissed. “When a court of competent jurisdiction has
entered a final judgment on the merits of a cause of
action, the parties to the suit and their privies are there-
after bound not only as to every matter which was offered
and received to sustain or defeat the claim or demand, but
as to any other admissible matter which might have been
offered for that purpose.” C.I.R. v. Sunnen, 333 U.S. 591,
 BUSH v. US 11
597 (1948). This rule applies “even if obtained upon a
default.” Riehle v. Margolies, 279 U.S. 218, 225 (1929).
Copeland is of no assistance to appellants. In
Copeland, the taxpayers stipulated that Krause generally
“controlled,” but specifically carved out an exception for
“the conclusion that I.R.C. §6621(c) applies” and adjudi-
cated that issue separately. 290 F.3d at 328–29. The
taxpayers then litigated §6621(c) to the Court of Appeals
for the Fifth Circuit without ever failing to prosecute or
having their case dismissed. See Copeland v. C.I.R., 79
T.C.M. (CCH) 2127 (T.C. 2000), aff’d in part, rev’d in part,
290 F.3d 326 (5th Cir. 2002). Unlike the taxpayers in
Copeland, the Dillon Oil partners did not challenge or
appeal any aspect of the Krause decision in the then-
pending Vulcan Oil suit. When Vulcan Oil was dis-
missed, the TMT finding in Krause became binding on
Dillon Oil at the partnership-level, just as the taxpayers
in Copeland would have been bound had they not ap-
pealed.
Copeland also serves to undermine the appellants’ ar-
gument that Krause was a “non-TMT determination.” If
that were true, the taxpayers in Copeland would not have
separately litigated the imposition of §6621(c) penalty
interest and appealed to the Fifth Circuit. The Copeland
taxpayers knew Krause was a TMT determination and
challenged it accordingly.
For these reasons, we agree with the Court of Federal
Claims that in order to set aside the IRS’s imposition of
TMT penalty interest, it would be necessary to relitigate
the Vulcan Oil court’s decision to bind Dillon Oil to “the
opinion of Krause.” 101 Fed. Cl. at 798. That is a part-
nership level issue; it affects the entire partnership, and
there are no “partner-specific determinations that must
be made at the individual partner level.” Duffie, 600 F.3d
at 366. Simply put, the appellants’ claim is “‘more appro-
priately determined at the partnership level than at the
12 BUSH v. US
partner level.’” Schell, 589 F.3d at 1381 (quoting I.R.C.
§6231(a)(3)). TEFRA contemplates “one proceeding” for
the adjudication of partnership adjustments. AD Global
Fund, LLC ex rel. N. Hills Holding, Inc. v. United States,
481 F.3d 1351, 1355 (Fed. Cir. 2007).
III.
The Court of Federal Claims held that our decisions
in Keener and Prati are not meaningfully distinguishable
from the present case, and we agree.
In Prati, we held that a partner-level suit claiming a
refund for §6621(c) interest was barred by TEFRA
§7422(h) because it fundamentally sought to relitigate
issues settled in a prior partnership-level suit. 603 F.3d
at 1308. The Prati litigants argued—much like the appel-
lants here—that they were not directly challenging
whether their transactions were tax motivated; rather
they claimed only to challenge the IRS’s application of
Treasury Regulation §301.6621–2T, A–5. Id. We con-
cluded that this regulation-based argument was “disin-
genuous” because, if successful, it would “invalidate” the
IRS’s FPAA determination that the partnership’s transac-
tions were tax motivated—which was not a part of the
settlement agreement. Id. In other words, we held that
the IRS’s finding of a TMT could not be challenged at the
partner-level based on the argument that the IRS misap-
plied a rule or statute following a partnership-level set-
tlement that was silent on that issue.
Likewise, in Keener, we held that a partner-level suit
seeking refund of §6621(c) penalty interest was barred
under §7422(h) because the IRS issued FPAAs stating
that the partnership engaged in sham transactions, and
the taxpayers entered into settlements which did not alter
that finding. 551 F.3d at 1367. The taxpayers argued
that no partnership-level determination was actually
made because the settlement agreements were silent on
the TMT issue, but we rejected that argument on the
 BUSH v. US 13
basis that the FPAAs characterized the partnership
transactions as “a series of sham transactions,” wherein
sham transactions are clearly TMTs under
§6621(c)(3)(A)(v). Id.
Here, the Court of Federal Claims found Prati and
Keener unavoidable on the basis that a challenge to a
§6621(c) penalty interest assessment is “inherently” a
dispute over the proper characterization of the partner-
ships’ transactions, and barred by §7422(h). 101 Fed. Cl.
at 797 (citing Prati, 603 F.3d at 1308)).
To the extent that the Court of Federal Claims held
that a challenge to the imposition of §6621(c) penalty
interest is always inherently a dispute over the proper
characterization of the partnerships’ transactions, we
disagree. In Keener, we explicitly declined to “decide
whether §7422(h) precludes jurisdiction over every claim
for a refund of penalty interest imposed pursuant to
§6621(c).” 551 F.3d at 1366 n.7. In Prati and Keener, the
FPAAs stated that the taxpayers’ transactions were
“shams,” and therefore TMTs by statute. If that were not
the case, it may have been necessary to point to some
other TMT determination to resolve the jurisdictional
question.
In this case, the FPAAs did not use the term “sham”
to characterize Dillon Oil’s transactions. The FPAAs
stated that the transactions lacked “profit-motive” and
“economic substance,” and possibly lacked “risk within the
meaning of Internal Revenue Code Section 465.” Thus, it
was necessary for the Court of Federal Claims to point to
a TMT determination other than the “sham” language of
Keener and Prati. The court did so in finding it “clear that
the Vulcan Oil court understood that the Dillon Oil part-
nership would be bound by the Krause decision, including
the imposition of TMT penalties under §183.” 101 Fed.
Cl. at 797 n.9.
14 BUSH v. US
We decline to address, in the first instance, whether
the Dillon Oil FPAAs support an independent TMT find-
ing akin to the “sham” transactions of Keener and Prati.
Dillon Oil’s Tax Court petitions certainly suggest that
such a finding might be found, since the petitions express-
ly stated that the Commissioner “erroneously proposed an
addition to tax under Code Section 662l(c).” But we need
not decide this issue because, unlike in Keener and Prati,
the appellants here were bound by the determination of
Krause as incorporated into Vulcan Oil.
On this record, it is irrelevant whether Krause was
rightly or wrongly decided. Dillon Oil’s partners did not
appeal the dismissal of their partnership-level suit in
Vulcan Oil. Although appellants argue that “[t]here was
no reason” to appeal the Vulcan Oil dismissal because
“there was no determination in that dismissal of a TMT,”
we are not persuaded. See Oral Argument 11:00–11:18,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/all/bush.html. The Krause decision unambigu-
ously imposed TMT penalty interest. See 99 T.C. at 180
(“In light of our findings as to the lack of profit objective,
petitioners are liable for increased interest under section
6621(c)”). Indeed, that specific portion of Krause was
appealed in no fewer than three circuits. Hildebrand, 28
F.3d 1024; Hill v. C.I.R., 204 F.3d 1214 (9th Cir. 2000);
Copeland, 290 F.3d 326. It is not reasonable to read
Krause as a “non-TMT determination” as appellants urge.
IV.
To the extent the Court of Federal Claims stated that
it does not have jurisdiction to determine whether “there
was ever a finding supporting TMT penalty interest,” we
conclude that the court misspoke. A court always has
jurisdiction to determine whether it has jurisdiction. See
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,
747 (Fed. Cir. 1988) (“If a motion to dismiss for lack of
subject matter jurisdiction [ ] challenges the truth of the
 BUSH v. US 15
jurisdictional facts alleged in the complaint, the district
court may consider relevant evidence in order to resolve
the factual dispute.”). The court itself stated that “in
considering a motion to dismiss for lack of subject matter
jurisdiction, a court may look beyond the pleadings and
‘inquire into jurisdictional facts’ to determine whether
jurisdiction exists.” 101 Fed. Cl. at 796 (citing Rocovich v.
United States, 933 F.2d 991, 993 (Fed. Cir. 1991)).
Here, the court made several findings relating to the
jurisdictional question of whether a TMT determination
was ever made. The court found that the appellants were
bound by Krause, and found that Krause expressly im-
posed §6621(c) penalty interest under §183. Based on
these findings, the court concluded that this case was not
materially different from Keener and Prati, and dis-
missed. 101 Fed. Cl. at 797–98 (“the present case involves
a partnership-level determination one step removed from
the determinations made in Prati and Keener. However,
this difference does not alter the outcome.”). We affirm on
these grounds.
Precedent does not, as the Court of Federal Claims
stated, preclude the court from examining whether a TMT
finding was made. To the contrary, in both Keener and
Prati, this court relied on TMT findings of “sham” trans-
actions in order to affirm the dismissal of partner-level
suits under §7422(h). Here, the relevant TMT finding
was made in Krause and became binding on appellants
through Vulcan Oil, as the Court of Federal Claims found.
CONCLUSION
The appellants’ refund claims were properly dismiss-
ed under §7422(h). The appellants cannot collaterally
attack Krause or Vulcan Oil at this stage.
AFFIRMED