Thomas L. Freytag and Sharon N. Freytag - Page 10

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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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