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notice of deficiency will end 60 days after the period
during which the making of an assessment was
prohibited.
In arguing that Form 872-A is an executory contract,
petitioners point to the “functional approach” adopted by the
Court of Appeals for the Eleventh Circuit, the court to which
this case is appealable. Petitioners argue that this functional
approach deems an agreement to be executory even without
mutuality of remaining obligation between the contracting
parties, as long as the rejection of the agreement benefits the
estate and its creditors. Concluding that the Form 872-A is an
executory contract, petitioners argue the period of limitations
was ended pursuant to 11 U.S.C. section 365(d)(1): “In a case
under chapter 7 of this title, if the [bankruptcy] trustee does
not assume or reject an executory contract * * * of the debtor
within 60 days after the order for relief * * * then such
contract or lease is deemed rejected.” Under this statute,
petitioners argue that the period of limitations extension for
Form 872-A expired before respondent issued the notice of
deficiency.
Respondent argues petitioners’ position that Form 872-A is
an executory contract is misplaced. Respondent argues that the
Supreme Court and this Court have held that consents to extend
the limitations period are not contracts but instead are a
unilateral waiver by the taxpayer. See Stange v. United States,
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Last modified: March 27, 2008