Estate of Marvin E. Greenfield, Deceased, Barbara Greenfield, Personal Representative, and Barbara Greenfield - Page 8




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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