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the settlement that was reached either prior to or at the time of
trial. Id.
With respect to the excise tax, the District Court held that
the cover letter placed a condition on the taxpayer’s consent to
extend the period of limitations; i.e., settlement of the excise
tax issue at 35 percent of the tax claimed. Id. The District
Court concluded that the period of limitations was not extended
because the settlement reached was disputed, and, therefore, the
assessment of excise tax was untimely. Id.
In the instant case, petitioner did not place a condition in
the cover letter accompanying the Form 872-A. The body of
petitioner’s May 28, 2002, cover letter has previously been
quoted in full in this opinion. There are no statements in the
cover letter which alter the language of the Form 872-A or, in
any way, condition the special consent. We hold that the Form
872-A executed by the parties is unconditional and unrestricted.
Therefore, having concluded that a settlement was not
reached and that the Form 872-A executed by the parties is
unrestricted and unconditioned, we hold, as a matter of law, that
the assessment period for petitioner’s years at issue remained
open with respect to the issues raised in the deficiency notice.
Accordingly, petitioner’s motion for partial summary judgment is
denied, and respondent’s motion for partial summary judgment is
granted.
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Last modified: May 25, 2011