Agri-Cal Venture Associates, Frederick H. Behrens, Tax Matters Partner, et al. - Page 8




                                        - 8 -                                         
               Section 6229(d) makes clear that, if, for any partnership              
          taxable year, no partnership return is filed, any tax                       
          attributable to a partnership item arising in that year may be              
          assessed at any time.                                                       
               B.  Affirmative Defense; Burden of Proof; Importance of                
                    Contract Principles                                               
               In Amesbury Apartments, Ltd. v. Commissioner, 95 T.C. 227              
          (1990), we dealt with a claim that the section 6229(a) assessment           
          period had expired.  We stated:                                             
                    The expiration of the period of limitation on                     
               assessment is an affirmative defense, and the party                    
               raising it must specifically plead it and carry the                    
               burden of proving its applicability.  Rules 39, 142(a).                
               To establish this defense, the taxpayer must make a                    
               prima facie case establishing the filing of the                        
               partnership return, the expiration of the statutory                    
               period, and receipt or mailing of the notice after the                 
               running of the period.  Miami Purchasing Service Corp.                 
               v. Commissioner, 76 T.C. 818, 823 (1981); Robinson v.                  
               Commissioner, 57 T.C. 735, 737 (1972).  Where the party                
               pleading the defense makes such a showing, the burden                  
               of going forward with the evidence shifts to respondent                
               who must then introduce evidence to show that the bar                  
               of the statute is not applicable.  Adler v.                            
               Commissioner, 85 T.C. 535, 540 (1985).  Where                          
               respondent makes such a showing, the burden of going                   
               forward then shifts back to the party pleading the                     
               affirmative defense to show that the alleged exception                 
               to the expiration of the period is invalid or otherwise                
               inapplicable.  Adler v. Commissioner, supra at 540.                    
               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.  Adler v.                
               Commissioner, supra at 540.                                            
                    An agreement to extend the period of limitation                   
               for assessment and collection is not a contract but                    
               rather a waiver of a defense.  Stange v. United States,                
               282 U.S. 270 (1931); Piarulle v. Commissioner, 80 T.C.                 
               1035, 1042 (1983); Tallal v. Commissioner, 77 T.C. 1291                
               (1981), affd. on other issues 778 F.2d 275 (5th Cir.                   




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011