- 11 - and an accountant. Petitioner has presented nothing that would indicate the Court should have granted his fourth motion for continuance. B. Statute of Limitations Petitioner argues that the statute of limitations under section 6501 bars the issuance of respondent’s notice of deficiency because the notice was issued more than 3 years after petitioner’s 1996 return was due. Petitioner’s argument is flawed, both procedurally and substantively. Rule 39 provides that “A party shall set forth in the party’s pleading any matter constituting an avoidance or affirmative defense, including * * * the statute of limitations.” Petitioner did not raise the statute of limitations as an affirmative defense in his petition, reply, or at trial, but does so for the first time on brief.4 Petitioner’s failure to timely raise the statute of limitations amounts to a waiver of this affirmative defense. Because petitioner has waived it, we need not consider his argument further. However, because petitioner seeks to misapply section 6501, we will briefly address it. 4 In his opening brief, petitioner states: “Respondent apparently contends as an affirmative defense that the statute remains open”. Respondent is not raising an affirmative defense and thus the burden is not on respondent to plead it. Petitioner apparently made this argument in an effort to side-step the fact that he failed to plead the statute of limitations as an affirmative defense, and it is without merit.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011