Steven Jay Wolk - Page 7

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          procedural requirements were met and that the collection action             
          should proceed.                                                             
                                     Discussion                                       
          Period of Limitations                                                       
               Petitioner argues that the period of limitations on                    
          assessment expired for the 1991 and 1992 taxable years.  We                 
          review respondent’s determinations de novo, as the period of                
          limitations constitutes a challenge to the underlying tax                   
          liabilities.  See MacElvain v. Commissioner, T.C. Memo. 2000-320.           
          The period of limitations is an affirmative defense which must be           
          pled and established by the taxpayer.  Knollwood Meml. Gardens v.           
          Commissioner, 46 T.C. 764, 792 (1966); Gatto v. Commissioner, 20            
          T.C. 830, 832 (1953).7  As pertinent here, an assessment of taxes           
          must be made “within 3 years after the return was filed (whether            
          or not such return was filed on or after the date prescribed)”.             
          Sec. 6501(a).                                                               
               Respondent assessed petitioner’s 1991 and 1992 taxes on                
          March 15, 1999, and November 30, 1998, respectively.  In order to           
          prevail, petitioner must establish that he filed his 1991 and               
          1992 returns before March 15, 1996, and November 30, 1995,                  
          respectively.                                                               



               7   Sec. 7491(a), concerning the burden of proof, is                   
          inapplicable because petitioner has not satisfied its                       
          requirements.                                                               





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