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Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving
party bears the burden of proving that there is no genuine issue
of material fact, and factual inferences will be read in a manner
most favorable to the party opposing summary judgment. Dahlstrom
v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.
Commissioner, 79 T.C. 340, 344 (1982).
Section 6501(a) sets forth the general rule that an income
tax must be assessed within 3 years after the tax return for the
particular year is filed. Mecom v. Commissioner, 101 T.C. 374,
381 (1993), affd. without published opinion 40 F.3d 385 (5th Cir.
1994). However, section 6501(c)(4) provides that the taxpayer
and the Commissioner may consent in writing to extend the normal
3-year period of limitations on assessment and that the tax may
be assessed anytime prior to the expiration of the period agreed
upon.
The bar of the period of limitations on assessment is an
affirmative defense, and the party raising it is required to
specifically plead the bar and to carry the ultimate burden of
persuasion. Rule 142(a); Adler v. Commissioner, 85 T.C. 535, 540
(1985). A taxpayer pleading the bar of the statute of
limitations may establish a prima facie case by showing that the
statutory notice was mailed beyond the normal 3-year period. The
burden of going forward then shifts to the Commissioner to show
that the bar of the statute of limitations is not applicable.
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