Davenport Recycling Associates, Sam Winer, Tax Matters Partner - Page 49

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               Participants filed their motion approximately 20 months                
          after the decision became final.  As we have noted, participants            
          argue that their motion to vacate should be granted because the             
          Court did not have jurisdiction over the underlying case and also           
          because there was a fraud upon the Court.  A party seeking to               
          vacate a final decision bears the burden of proof.  Abeles v.               
          Commissioner, supra at 106.                                                 
               In this case, participants also allege that the FPAA's were            
          not timely issued since under the terms of the Permanent                    
          Injunction and subsequent Modification Winer was not authorized             
          to execute consents extending the period of limitations because             
          his authority as TMP was restricted to the performance of                   
          "administrative services".  However, we decline to address                  
          participants' allegations that the consents executed by Winer, as           
          TMP, were ineffective to extend the time for respondent to issue            
          an FPAA because allegations concerning the period of limitations            
          constitute an affirmative defense, not a plea to the jurisdiction           
          of this Court.  Rule 39; Genesis Oil & Gas, Ltd. v. Commissioner,           
          93 T.C. 562 (1989).  The timeliness of the FPAA is not relevant             
          to the jurisdiction of this Court under section 6226, concerning            
          judicial review of final partnership administrative actions.                
          Genesis Oil & Gas, Ltd. v. Commissioner, supra.  For the purpose            
          of deciding participants' motion, our focus is on the validity of           
          the petition and not upon the timeliness of the FPAA's.                     






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