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petitioners' "conversion" theory and period of limitations
arguments seem logical at first glance, closer scrutiny reveals
that, if petitioners' conversion theory is correct with respect
to both decedent and Mrs. Callaway, it follows that the Court
lacks jurisdiction on the ground that the notices of deficiency
for affected items are invalid.
It is well settled that allegations concerning the period of
limitations constitute an affirmative defense, not a plea to the
jurisdiction of this Court. Saso v. Commissioner, 93 T.C. 730,
734-735 (1989); see Columbia Bldg., Ltd. v. Commissioner, 98 T.C.
607, 611-612 (1992). Further, the Court has long held that,
where the Court's jurisdiction and the period of limitations are
both disputed issues in a case, we are obliged to resolve first
whether the Court has jurisdiction. King v. Commissioner, 88
T.C. 1042, 1050 (1987), affd. on other grounds 857 F.2d 676 (9th
Cir. 1988). A jurisdictional issue can be raised by either party
or the Court sua sponte at any stage of the proceedings. Smith
v. Commissioner, 96 T.C. 10, 13-14 (1991).
As explained in greater detail below, if we agree with
petitioners' conversion theory, the notices of deficiency for
affected items are invalid thereby rendering petitioners' period
of limitations argument moot. On the other hand, if we reject
petitioners' conversion theory, the notices of deficiency for
affected items are valid, and petitioners' period of limitations
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