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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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