- 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.
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