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petitioner filed a cross-motion for partial summary judgment
asserting that respondent is time barred from raising the
alternative adjustment.
Discussion
Summary judgment is appropriate where the pleadings show that
no genuine issue of material fact exists and that a decision may be
rendered as a matter of law. Rule 121(b); Sundstrand Corp. &
Consol. Subs. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17
F.3d 965 (7th Cir. 1994); Jacklin v. Commissioner, 79 T.C. 340, 344
(1982). A partial summary adjudication may be made which does not
dispose of all the issues in the case. Rule 121(b); Naftel v.
Commissioner, 85 T.C. 527, 529 (1985).
With respect to the matter before us, there are no material
facts in dispute, and the pleadings, briefs, and affidavits before
us are sufficient to render a decision as a matter of law. Thus,
summary adjudication is appropriate under Rule 121.
Generally, income taxes must be assessed within 3 years from
the date the tax return is filed. Sec. 6501(a). However, the
period of limitations may be extended by the parties through the
execution of Form 872 or 872-A:
Where, before the expiration of the time prescribed in
this section for the assessment of any tax imposed by
this title, except the estate tax provided in chapter 11,
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
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