Joan Walters, f.k.a. Joan Gherman, and Henry Gherman - Page 33

                                       - 33 -                                         

          the return.  If the taxpayer proves that the notice of deficiency           
          was mailed more than 3 years after the applicable date, then the            
          Commissioner has the burden of proving the existence of an                  
          exception to the general period of limitations.  Minahan v.                 
          Commissioner, 88 T.C. 492, 506 (1987); Stratton v. Commissioner,            
          54 T.C. 255, 289 (1970).                                                    
               Under section 6501(e)(1)(A), the period during which the               
          Commissioner may assess a deficiency is 6 years when a taxpayer             
          omits from income an amount that exceeds 25 percent of the gross            
          income required to be shown on the taxpayer's return.  The                  
          Commissioner has the burden of proving by a preponderance of the            
          evidence that the taxpayer has omitted an amount in excess of 25            
          percent of the gross income required to be shown on the return.             
          Armes v. Commissioner, 448 F.2d 972, 974 (5th Cir. 1971), affg.             
          in part and revg. in part T.C. Memo. 1969-181; Colestock v.                 
          Commissioner, 102 T.C. 380, 383 (1994); Burbage v. Commissioner,            
          82 T.C. 546, 553 (1984), affd. 774 F.2d 644 (4th Cir. 1985).                
          Where a joint return has been filed, the omission of income is              
          considered to be a failure to report income by each spouse.                 
          Benjamin v. Commissioner, 66 T.C. 1084, 1100 (1976), affd. on               
          another issue 592 F.2d 1259 (5th Cir. 1979).                                
               Mr. Gherman's return for the year ended 1988 was filed on              
          October 30, 1989.  The notice of deficiency for that year was               
          mailed to him on July 19, 1991.  Thus, the notice of deficiency             





Page:  Previous  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  Next

Last modified: May 25, 2011