- 8 - 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,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: March 27, 2008