Becker Holding Corporation and Subsidiaries - Page 16

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          the settlement that was reached either prior to or at the time of           
          trial.  Id.                                                                 
               With respect to the excise tax, the District Court held that           
          the cover letter placed a condition on the taxpayer’s consent to            
          extend the period of limitations; i.e., settlement of the excise            
          tax issue at 35 percent of the tax claimed.  Id.  The District              
          Court concluded that the period of limitations was not extended             
          because the settlement reached was disputed, and, therefore, the            
          assessment of excise tax was untimely.  Id.                                 
               In the instant case, petitioner did not place a condition in           
          the cover letter accompanying the Form 872-A.  The body of                  
          petitioner’s May 28, 2002, cover letter has previously been                 
          quoted in full in this opinion.  There are no statements in the             
          cover letter which alter the language of the Form 872-A or, in              
          any way, condition the special consent.  We hold that the Form              
          872-A executed by the parties is unconditional and unrestricted.            
               Therefore, having concluded that a settlement was not                  
          reached and that the Form 872-A executed by the parties is                  
          unrestricted and unconditioned, we hold, as a matter of law, that           
          the assessment period for petitioner’s years at issue remained              
          open with respect to the issues raised in the deficiency notice.            
          Accordingly, petitioner’s motion for partial summary judgment is            
          denied, and respondent’s motion for partial summary judgment is             
          granted.                                                                    






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