- 12 - Sec. 6213(a). Thus, generally, a notice of deficiency must be mailed to the taxpayer before the expiration of the period of limitations on assessment and collection set out in section 6501(a). The bar of this statute of limitations on assessment and collection is an affirmative defense, and the party raising it must plead it and carry the burden of proving its applicability. Rules 39, 142(a), Tax Court Rules of Practice and Procedure; Amesbury Apts., Ltd. v. Commis- sioner, 95 T.C. 227, 240 (1990); Adler v. Commissioner, 85 T.C. 535, 540 (1985); Schalekamp v. Commissioner, T.C. Memo. 1998-277. In this opinion, all Rule references are to the Tax Court Rules of Practice and Procedure. In this case, petitioner must prove that the date on which each of the subject returns was filed was more than 3 years before respondent issued the subject notice of deficiency. See United States v. Gurley, 415 F.2d 144, 147 (5th Cir. 1969); Young v. Commissioner, 208 F.2d 795 (4th Cir. 1953), affg. a Memorandum Opinion of this Court dated Apr. 10, 1953; BJR Corp. v. Commissioner, 67 T.C. 111, 121 (1976). We note that the substitute return respondent prepared for petitioner's taxable year 1990 pursuant to section 6020(b) did not start the running of the period of limitations on assessment and collection. SectionPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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