Jane B. Oliver and Robert P. Oliver - Page 49

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               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           






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