49- -
Respondent contends that petitioners should not be allowed
to raise this issue for the first time in their brief because it
was not pleaded by petitioners as an affirmative defense in their
petition or at the trial.
We agree with respondent. Rule 39 requires that the statute
of limitations be pleaded as an affirmative defense. Where a
taxpayer fails to plead the expiration of the statutory period of
limitations as an affirmative defense in his petition, that issue
is not properly before the Court. United Bus. Corp. of Am. v.
Commissioner, 19 B.T.A. 809, 831-832 (1930), affd. 62 F.2d 754
(2d Cir. 1933). Moreover, petitioners' contention lacks merit
because the notice of deficiency covering 1990 was sent to
petitioners on August 11, 1994, which was within 3 years after
their 1990 return was filed on August 19, 1991. Sec. 6501(a).
VI. Issue 11. Section 6651(a)(1) Additions to Tax
Section 6651(a)(1) provides for an addition to tax for
failure to file a Federal income tax return by its due date,
determined with regard to any extension of time for filing,
unless such failure was due to reasonable cause. In this case
petitioners applied for automatic 4-month extensions of time
within which to file their 1990 and 1991 returns. If the
requests for extensions were effective, their 1990 and 1991
returns were due on August 15, 1991, and August 15, 1992,
respectively. Sec. 1.6081-4, Income Tax Regs. Petitioners' 1990
Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: May 25, 2011