- 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