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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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