- 23 - that no such deficiency exists. Sec. 7459(e);6 United Business Corp. of Am. v. Commissioner, 19 B.T.A. 809, 832 (1930), affd. 62 F.2d 754 (2d Cir. 1933). Petitioners must raise in their pleading the affirmative defense that the statutory period of limitations has expired. Rule 39; Mecom v. Commissioner, 101 T.C. 374, 382 (1993), affd. 40 F.3d 385 (5th Cir. 1994); Amesbury Apartments, Ltd. v. Commissioner, 95 T.C. 227, 240 (1990). They failed to do so, attempting to raise the issue only in their Request for Admissions. However, the issue was tried by implied consent of the parties, and we will rule on the merits. Rule 41(b). Petitioners have made a prima facie case by proving the filing date of the income tax returns, August 26, 1987, and that the statutory notice of deficiency was mailed more than 3 years thereafter, on June 25, 1993, thereby shifting the burden of going forward to respondent. Robinson v. Commissioner, 57 T.C. 735, 737 (1972); see also Ribb v. Commissioner, T.C. Memo. 1988- 379. Respondent discharged that burden by showing that the parties executed three facially valid extensions to extend the period of limitations to June 30, 1993, Concrete Engg. Co. v. 6 SEC. 7459(e). Effect of Decision That Tax Is Barred By Limitation.--If the assessment or collection of any tax is barred by any statute of limitations, the decision of the Tax Court to that effect shall be considered as its decision that there is no deficiency in respect of such tax.Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
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