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OPINION
I. The Period of Limitations for 1980
Section 6501(a) provides (with certain exceptions) that
respondent shall assess deficiencies in income taxes within 3
years after the return is filed. Section 6501(c)(4) provides an
exception to this 3-year provision by allowing a taxpayer and
respondent to agree in writing to extend the period for
assessment, if such agreement is made before expiration of the 3-
year period.
Under the Court’s Rules, the defense of expiration of the
period of limitations is an affirmative defense, and the party
raising it must specifically plead it and carry the burden of
proving its applicability. See Rules 39, 142(a). As further
explained in Adler v. Commissioner, 85 T.C. 535, 540 (1985):
Where the party pleading such issue makes a showing
that the statutory notice was issued beyond the
normally applicable statute of limitations, however,
such party has established a prima facie case. At that
point, the burden of going forward with the evidence
shifts to the other side, and the other party has the
burden of introducing evidence to show that the bar of
the statute is not applicable. Where the other party
makes such a showing, the burden of going forward with
the evidence then shifts back to the party pleading the
statute, to show that the alleged exception is invalid
or otherwise not applicable. The burden of proof,
i.e., the burden of ultimate persuasion, however, never
shifts from the party who pleads the bar of the statute
of limitations. [Citations omitted.]
In this case, it is undisputed that the normally applicable
period of limitations for assessing and collecting the tax
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Last modified: May 25, 2011