Mark N. and Marla R. Kantor - Page 23

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           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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