- 14 -
limitations provided in section 6501(a).14 The contention that
the period of limitations has expired is an affirmative defense
which must be specifically pleaded. Rule 39; Robinson v.
Commissioner, 57 T.C. 735, 737 (1972). Petitioner properly
raised in his petition the affirmative defense of the expiration
of the period of limitations for each year in issue except 1989.
Petitioner's failure to plead the affirmative defense of the
expiration of the period of limitations with respect to 1989
constitutes a waiver of the defense for that year. Rule
34(b)(4); see Shopsin v. Commissioner, T.C. Memo. 1984-151, affd.
without published opinion 751 F.2d 371 (2d Cir. 1984).
Consequently, we conclude that the assessment and collection of
any deficiency for 1989 is not barred by the period of
limitations.
As to the remaining years (i.e., 1987, 1988, and 1990),
however, unless one of the exceptions to the period of
limitations is applicable, the assessment of the deficiencies,
additions, and penalties determined in the deficiency notice is
14 Sec. 6501(a) reads as follows:
SEC. 6501(a). General rule.--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.
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: May 25, 2011