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Discussion
Issue 1: Statute of Limitations6
Petitioner contends that assessment and collection of any
additional employment tax liability for the taxable periods in
issue is barred by the statute of limitations. We disagree for
the following reasons.
As a general rule, section 6501(a) requires that any tax be
assessed within 3 years after the return was filed. Section
6501(b) sets forth rules providing when a return is deemed to
have been filed.
As applicable herein, in the case of FUTA taxes reportable
on Form 940, a return is due on or before January 31 of the year
following the calendar year for which the return is required.
See sec. 6071(a); sec. 31.6071(a)-1(c), Employment Tax Regs. See
also sec. 31.6011(a)-3, Employment Tax Regs., regarding the
requirement for filing such a return. However, in case of an
early return, the return is deemed to have been filed on the last
day prescribed therefor. See sec. 6501(b)(1).
6 At the time of trial, as well as when the posttrial
briefs were filed, the Court had not yet decided whether issues
related to the statute of limitations were cognizable in an
action for redetermination of employment status. Subsequently,
it was decided that when the jurisdiction of the Court has been
properly invoked pursuant to sec. 7436, the Court may properly
decide whether the issuance of the Commissioner’s notice of
determination is barred by the expiration of the period of
limitations under sec. 6501. See Neely v. Commissioner, 115 T.C.
287 (2000).
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