Lee B. Arberg and Melissa A. Quinn - Page 33




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          Mr. Arberg and are ordinary in nature.  Furthermore, the record             
          indicates and respondent states that any opportunity to assess              
          additional taxes for 1999 based on this changed position would              
          have expired, and petitioners have at no time alleged to the                
          contrary.                                                                   
               The general statue of limitations on assessment pursuant to            
          section 6501(a) is 3 years from the date the return is filed.               
          The statutory period for a 1999 return would therefore typically            
          terminate in 2003.  To the extent it could be argued that                   
          petitioners’ change in position was timely disclosed to the IRS,            
          the Court would reject any such suggestion in the unique                    
          circumstances of this case.  Although petitioners filed their               
          2000 return in April of 2001 and provided their revised 2000                
          return in March of 2002, Mr. Arberg on July 3, 2002, signed a               
          Form 5564, Notice of Deficiency Waiver, with respect to 1999.               
          The last documentary submission reflected by the record as having           
          been given to the IRS, prior to expiration of the period of                 
          limitations for 1999, regarding petitioners’ 1999 and 2000                  
          reporting of the E Trade account would thus seem to reaffirm the            
          original 1999 reporting of the account as other than                        
          Mr. Arberg’s.                                                               
               Additionally, as of the time motions to compel were filed in           
          this case in December of 2006, respondent represented that                  
          petitioners still had not provided documentation of the transfers           







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