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' 1990Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
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