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VIRGINIA HISTORIC TAX CREDIT FUND 2001 v. C.I.R.

Nos. 10-1333, 10-1334, 10-1336.

639 F.3d 129 (2011)

VIRGINIA HISTORIC TAX CREDIT FUND 2001 LP; Virginia Historic Tax Credit Fund 2001 LLC; Tax Matters Partner, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Commonwealth of Virginia, Amicus Supporting Appellees. Virginia Historic Tax Credit Fund 2001 LLC; Virginia Historic Tax Credit Fund 2001 SCP, LLC; Tax Matters Partner, Petitioners-Appellees, v. Commissioner of Internal Revenue, Respondent-Appellant. Commonwealth of Virginia, Amicus Supporting Appellees. Virginia Historic Tax Credit Fund 2001 LLC; Virginia Historic Tax Credit Fund 2001 SCP, LP; Tax Matters Partner, Petitioners-Appellees, v. Commissioner of Internal Revenue, Respondent-Appellant. Commonwealth of Virginia, Amicus Supporting Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: March 29, 2011.

Attorney(s) appearing for the Case

ARGUED: Ivan C. Dale , United States Department of Justice, Washington, D.C., for Appellant. David Decoursey Aughtry , Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, Georgia, for Appellees. ON BRIEF: John A. DiCicco , Acting Assistant Attorney General, Richard Farber , Tax Division, United States Department of Justice, Washington, D.C., for Appellant. Hale E. Sheppard , Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, Georgia, for Appellees. Kenneth T. Cuccinelli, II , Attorney General of Virginia, E. Duncan Getchell, Jr. , State Solicitor General, Stephen R. McCullough , Senior Appellate Counsel, Charles E. James, Jr. , Chief Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Amicus Supporting Appellees.

Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge KEENAN joined.

OPINION

DUNCAN, Circuit Judge:

This appeal presents the question of whether certain transactions between a partnership and its partners amounted to "sales" for purposes of federal tax law. During an audit, the Commissioner of Internal Revenue (the "Commissioner") challenged the way that Virginia Historic Tax Credit Fund 2001, LLC ("2001 LLC"), as the tax matters partner of Virginia Historic Tax Credit Fund 2001 LP ("2001 LP"), Virginia Historic Tax Credit...

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