- 47 -
HFA-II’s affirmative defense of statute of limitations fails
because the 3-year period had not run at the time respondent
issued the HFA-II FPAA. See sec. 6229(a), (c)(3).
2. AMCOR Was Not a Partner
For the HFA-II 1985 Form 1065 to be a valid return, it must
be signed by one of the partners of the partnership. See sec.
6063. The parties have stipulated:
If * * * [AMCOR] is determined to have been a
general partner for Federal income tax purposes when
the * * * [HFA-II 1985 Form 1065] was executed then
such return is adequate to commence the running of the
statute of limitations as of the later of the due date
of the return or the date it was actually filed.
HFA-II has failed to propose a finding of fact that AMCOR
was a partner of HFA-II by February 4, 1986, the date of
Mr. Schreiber’s signature appearing on the HFA-II 1985 Form 1065.
The HFA-85 limited partnership agreement gives the general
partners the authority to admit a co-general partner. HFA-II has
failed to produce any evidence that such authority was exercised
on or before February 4, 1986. As with AVA, see supra section
III.B.1.d, HFA-II’s failure to produce such evidence leads to the
inference that either such evidence does not exist or would be
negative to petitioner. See Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th
Cir. 1947). We find that AMCOR was not admitted as a general
partner of the partnership on or before February 4, 1986.
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