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res judicata. The District Court thus applied the doctrine of
res judicata on the basis of the prior decision of the District
Court in the New York case. Petitioner did not appeal the
District Court’s decision in the North Carolina case, which is
now final. Petitioner cannot now challenge that decision or
raise the section 6303 claim.
With respect to the expiration of the period of limitations,
under section 183(e)(4), if a taxpayer elects to postpone the
determination of whether an activity is engaged in for profit,
and in particular whether the presumption of section 183(d)
applies to the activity, the statutory period for making
assessments with regard to that activity does not expire until
2 years after the due date for filing the return for the last
year of the 5-taxable-year period to which the election applies.
Petitioner elected to postpone the determination of whether his
fishing was engaged in for profit beginning with the 1990 tax
year. Therefore, the period of limitations for making an
assessment with regard to that activity for 1990 and 1991 did not
expire until April 15, 1997. The notices of deficiency were
issued on November 3, 1995. Filing a Form 5213 is a means by
which a taxpayer may elect to postpone the determination as to
whether a certain activity is engaged in for profit, for purposes
of applying section 183. Wadlow v. Commissioner, 112 T.C. 247,
250-251 (1999). The regulations provide that an individual
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Last modified: November 10, 2007