Evelyn B. Block - Page 4




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               In Robinson v. Commissioner, 57 T.C. 735, 737 (1972), we               
          held that “The statute of limitations is a defense in bar and not           
          a plea to the jurisdiction of this Court.”  See Badger Materials,           
          Inc. v. Commissioner, 40 T.C. 1061 (1963).  Section 7459(e)                 
          provides:                                                                   
                      SEC. 7459(e).  Effect of Decision That Tax Is                   
                 Barred by Limitation.--If the assessment or                          
                 collection of any tax is barred by any statute of                    
                 limitations, the decision of the Tax Court to that                   
                 effect shall be considered as its decision that                      
                 there is no deficiency in respect of such tax.[6]                    

               5(...continued)                                                        
                      3.  Petitioner proposes to amend her Petition                   
                 to raise the affirmative defense of statute of                       
                 limitations.  The proposed Amendment to Petition                     
                 accompanies this Motion.                                             
                      4.  The Court has jurisdiction to decide                        
                 whether the statutes of limitations on the                           
                 underlying joint and several liabilities have                        
                 expired.  The Court has held that “once our                          
                 jurisdiction has been properly invoked in a case,                    
                 we require no additional jurisdiction to render a                    
                 decision with respect to such an affirmative                         
                 defense [statute of limitations].”  Genesis Oil &                    
                 Gas, Ltd. v. Commissioner, 93 T.C. 562, 564                          
                 (1989).                                                              
                      5.  In Neely v. Commissioner, 115 T.C. 287                      
                 (2000), an analogous case, the Court held that it                    
                 had jurisdiction to decide an affirmative defense                    
                 raised by the petitioner in a section 7436 case                      
                 (Proceedings for Determination of Employment                         
                 Status).                                                             

               6“If the Tax Court finds that the assessment or collection             
          of a tax is barred by the statute of limitations, such a finding            
          constitutes a decision that there is no deficiency with respect             
          to such tax.”  Whirlpool Corp. v. Commissioner, 61 T.C. 182, 184            
                                                             (continued...)           





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