Peter M. and Susan L. Hoffman - Page 11

          defense must specifically plead it and prove it.  Rules 39,                 
          142(a); Mecom v. Commissioner, 101 T.C. 374, 382 (1993), affd.              
          without published opinion 40 F.3d 385 (5th Cir. 1994).  Because             
          petitioners have pleaded the defense properly, we proceed to                
          address their contention.                                                   
               In questioning the validity of the assessment by asserting             
          that it was made after the expiration of the 3-year period of               
          limitations, petitioners initially must prove:  (1) The filing              
          date of their 1990 tax return and (2) that respondent assessed              
          the relevant amounts after the expiration date of the 3-year                
          period.  Reis v. Commissioner, 142 F.2d 900 (6th Cir. 1944),                
          affg. 1 T.C. 9, 12 (1942), as modified by a Memorandum Opinion of           
          this Court dated June 4, 1943; Harlan v. Commissioner, 116 T.C.             
          31, 39 (2001) (and cases cited therein); see Mecom v.                       
          Commissioner, supra at 382.  Respondent concedes that petitioners           
          have proven both prongs.  Thus, petitioners have established a              
          prima facie case that the period of limitations precludes                   
          respondent from making the relevant assessment for 1990, and the            
          burden of going forward shifts to respondent.  See Mecom v.                 
          Commissioner, supra at 382.  Respondent must introduce evidence             
          that the assessment for 1990 is not barred by the period of                 
          limitations under section 6501(a).  Id.  If respondent makes such           
          a showing, the burden of going forward with the evidence shifts             
          back to petitioners.  Id. at 383.  Notwithstanding the shifting             
          of the burden of going forward, the burden of ultimate persuasion           

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