-16-
(2d Cir. 2002) (citing sec. 6229(a)), affg. T.C. Memo. 2001-85.4
If the Commissioner issues a timely FPAA to the taxpayer, the
period of limitation is suspended “for the period during which an
action may be brought under section 6226 (and, if a petition is
filed under section 6226 with respect to such administrative
adjustment, until the decision of the court becomes final), and *
* * for 1 year thereafter.” Sec. 6229(d)(1) and (2).
The expiration of the period of limitation on assessment is
an affirmative defense, and petitioner, as the party relying upon
that defense, must plead the defense and prove its applicability.
See Madison Recycling Associates v. Commissioner, supra at 286;
Amesbury Apartments, Ltd. v. Commissioner, 95 T.C. 227, 240
(1990); see also Chimblo v. Commissioner, 177 F.3d 119, 125 (2d
Cir. 1999), affg. T.C. Memo. 1997-535. Petitioner must make a
prima facie case showing that the periods of limitation have
expired by establishing the filing of the partnership returns,
the expiration of the statutory periods, and the receipt or
4 Notwithstanding sec. 6229(a), sec. 6501 establishes a
period of limitations for making assessments attributable to
Federal income tax. While in certain cases the period of
limitations under sec. 6501 may remain open even though the
period of limitations has expired under sec. 6229, see Andantech
L.L.C. v. Commissioner, 331 F.3d 972, 977 (D.C. Cir. 2003), affg.
in part and remanding in part T.C. Memo. 2002-97; Rhone-Poulenc
Surfactants & Specialities, L.P. v. Commissioner, 114 T.C. 533
(2000), appeal dismissed and remanded 249 F.3d 175 (3d Cir.
2001), neither party claims that this is one of those cases.
Instead, as framed by the parties, this case turns on whether the
period of limitations remains open under sec. 6229.
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