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sought the $75,012 of additional depreciation only "If the Court
concludes that the transaction is taxable in 1990".
Additionally, petitioners did not seek an overpayment or refund
in their petition, or the amendment thereto, or at any time,
until after the Court's issuance of the opinion and request for
the computations under Rule 155 for the 1989 year.
Petitioners rely on note 3 in T.C. Memo. 1997-477 in their
attempt to show that the 1990 year remained open for their claim
of a refund. That footnote contained the following commentary:
Petitioners had raised the defense that the period
for assessment had expired when respondent issued the
notice of deficiency for the 1990 year. The 1990 year
comes into play in the context of this case if
petitioners are entitled to installment sale treatment.
In that event respondent would also have the burden of
proving that an exception to the general period of
limitations applies. Stratton v. Commissioner, 54 T.C.
255, 289 (1970). That question is mooted by our
holding that petitioners are not entitled to
installment reporting. Even if petitioners had been
successful on the installment reporting issue,
respondent has carried the burden of showing a
fraudulent return, and, therefore, the period for
assessment would not have expired prior to issuance of
the deficiency notice. Sec. 6501(c)(1).
The footnote is dicta in that its purpose is to consider whether
the overall result in these cases would have been different if we
found that the installment sales method could have been used. It
was not the holding of our opinion and, accordingly, not a
predicate for petitioners' argument that the 1990 year is open.
There was no need to make a holding on that issue because the
sole issue raised for 1990 was mooted by our finding that
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