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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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