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Respondent asserts that Form 872 contained a mutual mistake,
allowing the Court to reform Form 872 to conform with the intent
of the parties.
SFWP argues that it did not consent in writing to extend the
period of limitation on assessments. Instead, SFWP contends that
respondent consented with USAWP to extend the period of
limitation on assessments as evidenced by the following facts:
(1) The taxpayer listed on Form 872 is identified as USAWP, (2)
the taxpayer's EIN on Form 872 is that of USAWP, and (3) the
corporate name on Form 872 is that of USAWP.
For the reasons discussed below, we agree with respondent.
The bar of the statutory period of limitation is an
affirmative defense, and the party raising this defense must
specifically plead it and prove it. See Rules 39, 142(a);
Amesbury Apartments, Ltd. v. Commissioner, 95 T.C. 227, 240
(1990). SFWP has pleaded the defense properly, but, as
previously stated, in a summary judgment proceeding factual
inferences are read in a manner most favorable to the opposing
party. In this case, the undisputed facts, as discussed below,
clearly and convincingly establish that the reference to USAWP
rather than SFWP in the Form 872 was the result of a mutual
mistake of the parties, which is susceptible of appropriate
reformation to conform with the intent of the parties.
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