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The only partnership agreement in the record herein is a
copy of such an agreement attached to the private placement
offering which was obviously a proposed agreement and therefore
contained no indication that it had been signed. That agreement
authorized a general partner to "take any action of any kind and
to do anything and everything he deems necessary in connection"
with the management of the business of the partnership.
Petitioners contend that only an executed partnership agreement
could grant Mr. Farley the necessary authority and that, aside
from any question as to the scope of the above authorizing
language, it cannot provide the necessary foundation for Mr.
Farley's action.
Initially, we think it important to emphasize that the
expiration of the period of limitations on an assessment is an
affirmative defense. Rules 39, 142(a). Petitioners have made a
prima facie case that the 1988 FPAA was issued after the 3-year
statutory period, thereby shifting the burden of going forward to
respondent. Respondent has come forward with evidence that the
statutory period was extended by the 1986 consent. If that
consent was valid on its face, the burden of going forward shifts
back to petitioners to show that the extension was invalid. See
Adler v. Commissioner, 85 T.C. 535, 541 (1985). The underlying
burden of proof, however, never shifts from petitioners. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 114 (1933); see
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