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petitioner and Mrs. Hernandez signed a second Form 872 with
ballpoint pen or pens, extending the period of limitations for
tax years 1990 and 1991 until June 30, 1996. Respondent’s
Appeals officer signed the form on March 27, 1995. This form was
a two-page facsimile copy on white paper of a blank printed Form
872.
OPINION
Issue 1. The Statutory Notice of Deficiency Was Issued Within
the Period of Limitations
Section 6501(a) provides:
Except as otherwise provided in this section, the
amount of any tax imposed by this title shall be
assessed within 3 years after the return was filed
(whether or not such return was filed on or after the
date prescribed) * * * and no proceeding in court
without assessment for the collection of such tax shall
be begun after the expiration of such period.
Section 6501(c)(4) provides for an extension of the period of
limitations by agreement:
Where, before the expiration of the time prescribed in
this section for the assessment of any tax imposed by
this title * * * both the Secretary and the taxpayer
have consented in writing to its assessment after such
time, the tax may be assessed at any time prior to the
expiration of the period agreed upon. The period so
agreed upon may be extended by subsequent agreements in
writing made before the expiration of the period
previously agreed upon.
Petitioner pleaded in his petition the expiration of the
period of limitations as an affirmative defense. In order to
prevail on this issue, petitioner must carry the burden of proof.
Rules 39, 142(a); Adler v. Commissioner, 85 T.C. 535, 540 (1985).
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