Estate of Marvin E. Greenfield, Deceased, Barbara Greenfield, Personal Representative, and Barbara Greenfield - Page 10




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          and received their discharge in October of that year.                       
          Approximately 1 year later, in October 1989, a notice of                    
          deficiency was sent to the Bilskis for joint income tax liability           
          that the Bilskis claimed was discharged in bankruptcy and time              
          barred.  The Bilskis, as do petitioners, argued that the Form               
          872-A was an executory contract.  In affirming the Tax Court, the           
          Court of Appeals for the Fifth Circuit stated:                              
                    Like every other circuit that has addressed the                   
               matter, we have held that “the [872-A] agreement to                    
               extend the statute of limitations between the                          
               Commissioner and the [taxpayer] is not a contract, but                 
               a unilateral waiver of a defense by the taxpayer.”                     
               Here, the Extension Agreement was an indefinite waiver                 
               of the statute of limitations.  Although this is the                   
               first time that we have considered the nature of an                    
               872-A in the context of bankruptcy, upon reflection we                 
               can discern no reason to depart from the general rule                  
               or to carve out a bankruptcy exception to it.                          
               Accordingly, we hold that the Extension Agreement was                  
               not an executory contract that terminated automatically                
               60 days after the Bilskis filed for bankruptcy.                        
               Rather, for purposes of bankruptcy, as for all other                   
               purposes, an 872-A is a waiver of the affirmative                      
               defense of time-bar under the statute of limitations.                  
               [Bilski v. Commissioner, 69 F.3d at 68 (quoting Buchine                
               v. Commissioner, 20 F.3d 173, 179 (5th Cir. 1994),                     
               affg. T.C. Memo. 1992-36); fn. ref. omitted.]                          
               Applying the reasoning of Stange and Piarulle in the context           
          of bankruptcy, we find Bilski persuasive.  Petitioners have not             
          provided this Court with a convincing reason or case to the                 
          contrary.  As set forth in the Form 872-A, taxpayers wishing to             
          terminate their extension of the limitations period under this              
          form should file a Form 872-T.  Only by filing a Form 872-T may a           
          taxpayer terminate the extension provided by a Form 872-A; no               






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