- 18 -
Cir. 1944). The above factors must be shown by a preponderance
of the evidence. Armes v. Commissioner, 448 F.2d 972, 974 (5th
Cir. 1971), affg. in part and revg. T.C. Memo. 1969-181.
We explained the mechanics of how the burden of going
forward with the evidence works and when it shifts in Adler v.
Commissioner, 85 T.C. 535, 540 (1985):
The bar of the statute of limitations is an
affirmative defense, and the party raising it must
specifically plead it and carry the burden of proof
with respect thereto. Rules 39, 142(a). Where the
party pleading such issue makes a showing that the
statutory notice was issued beyond the normally
applicable statute of limitations, however, such party
has established a prima facie case. At that point, the
burden of going forward with the evidence shifts to the
other side, and the other party has the burden of
introducing evidence to show that the bar of the
statute is not applicable. Where the other party makes
such a showing, the burden of going forward with the
evidence then shifts back to the party pleading the
statute, to show that the alleged exception is invalid
or otherwise not applicable. The burden or proof,
i.e., the burden of ultimate persuasion, however, never
shifts from the party who pleads the bar of the statute
of limitations. See Stern Bros. & Co. v. Burnet, 51
F.2d 1042 (8th Cir. 1931), affg. 17 B.T.A. 848 (1929);
* * *
Petitioners filed their 1986 Federal income tax return on
April 15, 1987. Respondent issued her notice of deficiency on
March 31, 1993. Consequently, the deficiency is timely only if
the 6-year statute of limitations applies.
Petitioners plead the 3-year statute of limitations as a bar
to respondent's deficiency determination. Respondent pleads the
6-year statute of limitations in her answer. Petitioners argue
that respondent has failed to meet her burden to show a greater
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011