Tommy Ho Ching Cheng - Page 11

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          and an accountant.  Petitioner has presented nothing that would             
          indicate the Court should have granted his fourth motion for                
          continuance.                                                                
          B.   Statute of Limitations                                                 
               Petitioner argues that the statute of limitations under                
          section 6501 bars the issuance of respondent’s notice of                    
          deficiency because the notice was issued more than 3 years after            
          petitioner’s 1996 return was due.  Petitioner’s argument is                 
          flawed, both procedurally and substantively.                                
               Rule 39 provides that “A party shall set forth in the                  
          party’s pleading any matter constituting an avoidance or                    
          affirmative defense, including * * * the statute of limitations.”           
          Petitioner did not raise the statute of limitations as an                   
          affirmative defense in his petition, reply, or at trial, but does           
          so for the first time on brief.4  Petitioner’s failure to timely            
          raise the statute of limitations amounts to a waiver of this                
          affirmative defense.  Because petitioner has waived it, we need             
          not consider his argument further.  However, because petitioner             
          seeks to misapply section 6501, we will briefly address it.                 



               4  In his opening brief, petitioner states:  “Respondent               
          apparently contends as an affirmative defense that the statute              
          remains open”.  Respondent is not raising an affirmative defense            
          and thus the burden is not on respondent to plead it.  Petitioner           
          apparently made this argument in an effort to side-step the fact            
          that he failed to plead the statute of limitations as an                    
          affirmative defense, and it is without merit.                               




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