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by * * * [the bankruptcy] court, the IRS should have assessed.
They [sic] didn't. They [sic] are now out of time."
The running of the period of limitations is a defense to a
claim, and it is not a jurisdictional matter. See, e.g.,
Robinson v. Commissioner, 12 T.C. 246, 248 (1949), affd. 181 F.2d
17 (5th Cir. 1950). It, however, may be argued that, if indeed
the period of limitations had run, this Court should enter a
decision that there are no deficiencies due from petitioner.
Section 7459(e) provides that "If the assessment or collection of
any tax is barred by any statute of limitations, the decision of
the Tax Court to that effect shall be considered as its decision
that there is no deficiency in respect to such tax."
The genesis of petitioner's argument lies in section 6871(b)
and 11 U.S.C. sec. 505(c).5 Section 6871(b) provides--
Any deficiency (together with all interest, additional
amounts, and additions to the tax provided by law)
determined by the Secretary in respect of a tax imposed
by Subtitle A or B * * * on--
5 11 U.S.C. sec. 505(c) (1994) provides:
Notwithstanding section 362 of this title, after
determination by the [bankruptcy] court of a tax under
this section, the governmental unit charged with
responsibility for collection of such tax may assess
such tax against the estate, the debtor, or a successor
to the debtor, as the case may be, subject to any
otherwise applicable law.
Congress subsequently applied the principles of 11 U.S.C. sec.
505(c) more specifically to Federal tax proceedings when it
enacted sec. 6871(b).
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