Alec Jeffrey Megibow - Page 17

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          Commissioner, 64 T.C. 989, 997 (1975).  Such prejudice arises               
          when the opposing party would be prevented from presenting                  
          evidence that might have been offered if the issue had been                 
          timely raised, or the opposing party would otherwise be surprised           
          and placed at a disadvantage.  DiLeo v. Commissioner, supra at              
          891-892; Markwardt v. Commissioner, supra at 997.  It is also the           
          rule of this Court that claims related to the statute of                    
          limitations are affirmative defenses that must be pleaded or                
          proved at trial and upon which the taxpayer bears the burden of             
          proof.  Rules 39, 142(a); Woods v. Commissioner, 92 T.C. 776, 779           
          (1989).                                                                     
               We conclude that the foregoing principles render                       
          consideration of petitioner’s argument inappropriate here.  At              
          minimum, the posture in which this issue has arisen deprived                
          respondent of the opportunity to introduce evidence concerning              
          petitioner’s agreement to extend the statute and the authority of           
          his representative.  Additionally, petitioner has submitted no              
          materials to support his allegations; he has merely indicated               
          that he is attempting to obtain such proof through an FOIA suit             
          against respondent.                                                         
               We surmise from the grounds recited in his motion to extend            
          the time for filing answering briefs that he would seek to                  
          proffer evidence and argument on this matter using his reply                
          brief as the vehicle, which would again raise complications                 






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