Gary Friedmann - Page 12




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             Sec. 6213(a).  Thus, generally, a notice of deficiency must              
             be mailed to the taxpayer before the expiration of the                   
             period of limitations on assessment and collection set out               
             in section 6501(a).                                                      
                  The bar of this statute of limitations on assessment                
             and collection is an affirmative defense, and the party                  
             raising it must plead it and carry the burden of proving                 
             its applicability.  Rules 39, 142(a), Tax Court Rules of                 
             Practice and Procedure; Amesbury Apts., Ltd. v. Commis-                  
             sioner, 95 T.C. 227, 240 (1990); Adler v. Commissioner,                  
             85 T.C. 535, 540 (1985); Schalekamp v. Commissioner, T.C.                
             Memo. 1998-277.  In this opinion, all Rule references are                
             to the Tax Court Rules of Practice and Procedure.  In this               
             case, petitioner must prove that the date on which each of               
             the subject returns was filed was more than 3 years before               
             respondent issued the subject notice of deficiency.  See                 
             United States v. Gurley, 415 F.2d 144, 147 (5th Cir. 1969);              
             Young v. Commissioner, 208 F.2d 795 (4th Cir. 1953), affg.               
             a Memorandum Opinion of this Court dated Apr. 10, 1953; BJR              
             Corp. v. Commissioner, 67 T.C. 111, 121 (1976).                          
                 We note that the substitute return respondent prepared              
             for petitioner's taxable year 1990 pursuant to section                   
             6020(b) did not start the running of the period  of                      
             limitations on assessment and collection.  Section                       






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