To Infinity, and Beyond: Ratification Under BBA

by Jenni Black

Jenni Black is a managing director in Citrin Cooperman’s national tax office and the practice leader of the tax procedure and controversy practice. She is also a contributing author for Procedurally Taxing.

In this post, Black examines an order in which the Tax Court found that a partnership’s petition was timely, even though it wasn’t filed by its partnership representative, because it was ratified by the attorney hired to file it after the partnership representative suffered a disabling illness.

This post reflects the author’s personal views and not necessarily those of Citrin Cooperman.

On March 12, 2026, in Infinity Cycle LLC v. Commissioner, No. 9369-24 (T.C. 2026), the Tax Court entered an order denying respondent’s motion to dismiss for lack of jurisdiction. At issue in the order was whether the correct person filed the petition and, if not, whether the petition could be ratified.1 While the court ultimately held the petition was “ratified,” how the petition was ratified isn’t entirely clear and poses more questions than answers. Join me as we go to infinity, and beyond!

The facts of this case are relatively straightforward. The partnership, Infinity Cycle, was being audited by the IRS for its 2018 tax year. Although it did not designate a partnership

1 There was also an issue of substantial compliance and incorrectly filing out Form 8979, “Partnership Representative Designation or Resignation,” but this article doesn’t address that issue.

representative (PR) on its original return (as required), it ultimately filed Form 8979 designating its lawyer, Mr. Knight, as PR for the 2018 tax year. Fast forward four years later and the IRS issues a notice of final partnership adjustment on March 11, 2024. The last day to file a petition in response to the FPA was June 10, 2024. According to the facts, Infinity Cycle attempted to contact its PR/attorney, Mr. Knight, upon receipt of the FPA only to learn that Mr. Knight, due to a medical condition, was no longer practicing law.2 Infinity Cycle then engaged Mr. Green, who timely filed the petition on June 7, 2024. But what Infinity Cycle did not do was change its PR from Mr. Knight to Mr. Green. In fact, Infinity Cycle did not designate Mr. Green as its PR until almost a year after the time to file a petition expired. Additionally, as the petition did not contain information about the PR, as is required by Tax Court Rule 255.2(b)(1), it did not identify Mr. Knight or Mr. Green as the PR.3

On December 19, 2024, respondent amended its answer to allege the petition was not filed by the correct person. Four months later, petitioner (Infinity Cycle) filed Form 8979 to change its PR from Mr. Knight to Mr. Green. Immediately after that, petitioner filed a motion to amend its petition to list Mr. Green as its PR. On May 16, 2025, respondent filed a motion to dismiss for lack of jurisdiction on the basis that the petition was not filed by someone with authority to file the petition.

Under section 6234, a partnership has 90 days from when the FPA is mailed to file a petition in

2 The order does not state whether Mr. Knight still had capacity to act, even if he was no longer practicing law.

3 Although a BBA partnership case includes the name of the PR in the caption (I do not know why), it appears the original caption of the case first used the TEFRA styling and listed the managing member of Infinity Cycle as the “TMP” and then the caption was changed to remove all reference to a TMP or PR.

response to the FPA. Under section 6223, the PR has the sole authority to act on behalf of the partnership under the Bipartisan Budget Act of 2015, which means the PR is the only one who can file the petition on behalf of the partnership. This was not in dispute. But, as mentioned above, Mr. Green (who filed the petition on behalf of the partnership) was not the PR at the time the petition was filed. What now? Sheriff, this is no time to panic. This is where ratification came in. The court had to decide if it had jurisdiction over a petition not filed by the PR “when a succeeding PR ratifies the original filing.” This is sort of where it got odd.

Under Tax Court Rule 60(a)(1), a timely filed petition shall not be dismissed on the ground that the wrong person filed the petition if “such party bringing the case” ratifies the petition (within a reasonable amount of time after the problem is discovered). Ratification treats the petition as being filed by “such party.” Who is “such party”? As the court noted, the PR has the exclusive authority to act for the partnership under BBA, and this includes the filing of a petition under section 6234. So, the PR must be “such party.”

Although acknowledging that only the PR can file the petition on behalf of the partnership and that Mr. Green was not the PR at the time the petition was filed, the court held it would “only be proper” to allow Mr. Green, as the succeeding PR, to ratify the petition that he himself filed as the attorney for Infinity Cycle. That seems rather circular to me. The court found it “compelling” that the managing member of Infinity Cycle authorized Mr. Green to file the petition.

So how did the court get there? I’m honestly not sure; but let’s look for clues! With all due respect to the Tax Court, it seems as if the court correctly noted that there is long-standing precedent allowing ratification under the 1982 Tax Equity and Fiscal Responsibility Act (and nonTEFRA), correctly noted what is required for ratification under that precedent, didn’t say how said requirements were met in this case (They arguably were not; more on this later.), and then found it would “only be proper” to allow the

“newly appointed” PR to ratify a petition he filed about a year before he became PR. In making its decision, the court relied heavily on TEFRA cases involving ratification. So, first, a little TEFRA history would be helpful here.

TEFRA had a two-tier petition system.4 Within the first 90 days after the FPA, only the tax matters partner (TMP) could file a petition (TMP time). If the TMP doesn’t file a petition, any notice partner may file a petition within 60 days of when TMP time ends (notice partner time). Prior to amendment in 1997,5 if a partner who was not the TMP filed during TMP time, the petition was invalid and dismissed for lack of jurisdiction. See, for example, Mishawaka Properties Co. v. Commissioner, 100 T.C. 353, 362 (1993); Brookes v. United States, 20 Cl. Ct. 733, 737 (1990); Transpac Drilling Venture 1982-22 v. Commissioner, 87 T.C 874 (1986). So, whether the TMP filed the petition was critically important, and the Tax Court often allowed the TMP to ratify to avoid harming all of the partners just because one partner jumped the gun.

Under case law, if you boil it all down, ratification only has one requirement: Someone who could have filed the original petition ratifies the petition filed by a person who did not have authority to file the original petition. See, for example, Mishawaka, 100 T.C. at 362 (“The underlying rationale of ratification cases tends to follow a pattern where: (1) The person who attempted to file the petition thought he was authorized, and (2) those who ratified were authorized to file or approve the filing of the petition, and (3) ratification was expressly attempted or possible.”); Starlight Mine v. Commissioner, T.C. Memo. 1991-59 (“Defects in an imperfect petition may be cured by the filing of an amended petition if there is evidence that the original signatory was duly authorized to file the

4 Section 6226(a), (b) (prior to repeal by the BBA).

5 In 1997, Congress added section 6226(b)(5) to address non-TMP petitions filed during TMP time. Under section 6226(b)(5), if a non-TMP notice partner files a petition during TMP time, the premature petition is treated as filed on the last day of notice partner time, provided no other notice partner filed during notice partner time. So the premature petition is placed at the end of the line.

original petition on behalf of the nonsigning petitioner.”);6 AMRB Associates v. Commissioner, T.C. Memo. 1991-450 (holding that four limited partners couldn’t ratify the petition because they were not authorized to file the original petition and they could not designate someone who was ineligible to be the TMP as TMP). The case law is clear that someone who could not have filed the original petition cannot ratify the filing of the petition by someone who also lacked authority to file the petition. AMRB Associates, T.C. Memo. 1991-450.

Under TEFRA, there is (almost) always a TMP. Reg. section 301.6231(a)(7)-1 provides very comprehensive steps to determine who the TMP is if there is not one (including in cases where the original TMP terminated as TMP). I mean, it gets down to the level of who’s first alphabetically. As there was always a person qualified to file a petition during TMP time, there was always a TMP to ratify any petition. BBA doesn’t have a “default” PR. Under BBA, it’s entirely possible not to have a PR at any given time; for example, if the partnership did not desi gnate one. So, unlike TEFRA, under BBA, there could be a situation where an FPA is issued and no one is able to petition and, therefore, no one is able to ratify. But that didn’t happen here. Infinity Cycle had a PR; it was Mr. Knight.

In its opinion, the Tax Court held “it would only be proper” to allow Mr. Green to ratify the original petition (A petition Mr. Green filed . . . so Mr. Green is ratifying his own action.) because the managing member of the partnership (And therefore the partnership itself? Unclear.) authorized Mr. Green to file the petition, even though Mr. Green didn’t become the PR until almost a year after the time to file the petition

6 The Tax Court cites this case in its order for the quote about giving the partnership an opportunity to provide the person “to be designated as TMP” so that person can ratify the petition, presumably for the concept that a person who is not yet authorized to file a petition can ratify it. From the docket, it appears a Mr. Kenneth Walter was designated as TMP. The opinion doesn’t mention that person at all. But TEFRA has rules for determining who the TMP is if there is not one (either because the original TMP terminated or the original one was not qualified to be TMP). There are not enough facts in the opinion to discern who the TMP is, so there is no way to determine if Mr. Walter was the TMP as determined under reg. section 301.6231(a)(7)-1. However, given the court’s focus on whether the people who claimed to be TMP were TMP, it would seem likely that when the court used the term “to be designated,” it meant who the TMP is under the regulation — but there’s no way to tell for sure.

expired. But Mr. Knight was the PR at the time the petition was filed.7 You see the hat? He was the PR. So isn’t Mr. Knight “such party”? He never ratified the petition.8

Let’s go back to the test for ratification. The filing of a petition by a person without authority to file the original petition (in this case, Mr. Green) is ratified by someone who had authority to file the original petition. (As the court allowed Mr. Green to ratify, is he this as well?) If Mr. Green had authority to file the original petition, he wouldn’t have needed to ratify it. What was the court’s basis for allowing Mr. Green to ratify himself?

Although not clear, the court seems to hold that because the partnership authorized Mr. Green to file the petition and then (much) later named him PR, Mr. Green could ratify . . . himself.

Taking a step back, the order holds that only the PR can file the petition on behalf of the partnership. Agree. The court acknowledged Mr. Green was not the PR when he filed the petition. Agree. But this is OK, because Mr. Green was designated as PR over a year later and the managing member (not the PR) of the partnership authorized Mr. Green to file. Wait, what? So, the court acknowledges the only person who can act on behalf of the partnership under BBA (including the filing of the petition) is the PR, but then allows someone who is not the PR (the managing member) to act on behalf of the partnership under BBA and authorize someone to file the petition when neither person (the managing member or Mr. Green) had authority to file the petition at the time it was filed — but they can get authority at a later date and that’s ratification? Years of academy training, wasted!

The court’s holding in the order in Infinity Cycle is not consistent with the case law addressing ratification (or, arguably, the rest of the holdings in the order itself). Under the case law, only a person who had authority to file the petition at the time the petition was filed can ratify the petition. In this case, the only person who had authority to file the petition was Mr. Knight. Not

7 There is nothing under the code or regulations that automatically terminates the PR; it always requires an affirmative action.

8 The order does not say whether it was impossible for Mr. Knight to ratify the petition. It notes Mr. Knight was no longer practicing law, but that’s not a prerequisite to be PR.

the managing member of the partnership and not the partnership’s attorney (Mr. Green). BBA does not change the ratification rules. In this case, it was Mr. Green, without authority (or was it the candlestick?), in the Tax Court! This was an entirely avoidable situation. How?

As stated in the order, Infinity Cycle filed a Form 8979 designating Mr. Knight as the PR because it did not designate one on its return for the 2018 tax year. This suggests Infinity Cycle knew it could use Form 8979 to choose its PR. So why didn’t Infinity Cycle just file a Form 8979 at the time it hired Mr. Green, or at any time up to when the petition was filed? The order does not say. The same managing member who authorized Mr. Green to file the petition also could have signed a Form 8979 designating Mr. Green as the PR. But he didn’t. It’s also unclear why, instead of fighting about this, they didn’t just ask Mr. Knight to ratify the petition.

What can be learned from the Tax Court’s order in Infinity Cycle? We all should have learned to promptly file Form 8979 to avoid all this mess. In this case, the partnership designated its attorney as its PR (first Mr. Knight, then Mr. Green). This left only one live human who could take the needed action (in this case, file the petition). Perhaps a better way this could have

been handled is to name the managing member as the PR then have the attorney be the representative of the PR under a power of attorney.9 Therefore, there’s a backup. Although Mr. Knight was out of the picture, the managing member (if he was the PR) could authorize Mr. Green to file the petition as the new attorney. No ratification required. Having an entity PR here would not have been any different. All the same issues would still exist, but for the designated individual, as the designated individual has the sole authority to act on behalf of the entity PR. So the entity PR would be unable to take an action if the designated individual wasn’t there to take the action (the same as with the PR in this case). Maybe the biggest takeaway from this case is that communication between the partnership and its PR is critically important. If the partnership knew of Mr. Knight’s issues prior to the FPA, there would have been more time to change the PR before action needed to be taken. Now you know. And knowing is half the battle.

9 I acknowledge that this would not solve the problem if the PR died or otherwise had something happen that would automatically terminate the power of attorney.