U.R. Neely - Page 11




                                       - 11 -                                         
                                       OPINION                                        
               The sole matter for determination is whether the period of             
          limitations on assessment expired prior to the issuance of                  
          respondent’s notice of determination.  Petitioner contends that             
          the assessment of any additional employment tax liability is                
          barred by the statute of limitations under section 6501, as the             
          notice of determination was issued after the general 3-year                 
          period of limitations provided by section 6501(a).  Respondent,             
          on the other hand, contends that the general limitations period             
          under section 6501(a) does not apply in this case.  Respondent              
          claims that the employment tax returns at issue were false and              
          fraudulent with an intent to evade tax and that the period of               
          limitations thereby remains open pursuant to section 6501(c)(1).7           
          Accordingly, whether respondent’s notice of determination was               
          timely issued depends on whether petitioner committed fraud in              
          the filing of the employment tax returns.                                   
               This is the first instance in which this Court has been                
          called upon to determine whether a taxpayer committed fraud in              
          the employment tax context.  Nonetheless, the determination of              
          fraud for purposes of the period of limitations on assessment               



               7  Respondent also alleged in his answer that the failure of           
          petitioner to reflect the cash payments to the workers on the               
          appropriate employment tax returns constituted a willful attempt            
          by petitioner to defeat or evade employment taxes, justifying an            
          indefinite extension of the period of limitations pursuant to               
          sec. 6501(c)(2).  However, respondent neither argued this point             
          at trial nor raised it in the course of the posttrial briefing.             
          Accordingly, we treat this argument as having been withdrawn.               



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