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and received their discharge in October of that year.
Approximately 1 year later, in October 1989, a notice of
deficiency was sent to the Bilskis for joint income tax liability
that the Bilskis claimed was discharged in bankruptcy and time
barred. The Bilskis, as do petitioners, argued that the Form
872-A was an executory contract. In affirming the Tax Court, the
Court of Appeals for the Fifth Circuit stated:
Like every other circuit that has addressed the
matter, we have held that “the [872-A] agreement to
extend the statute of limitations between the
Commissioner and the [taxpayer] is not a contract, but
a unilateral waiver of a defense by the taxpayer.”
Here, the Extension Agreement was an indefinite waiver
of the statute of limitations. Although this is the
first time that we have considered the nature of an
872-A in the context of bankruptcy, upon reflection we
can discern no reason to depart from the general rule
or to carve out a bankruptcy exception to it.
Accordingly, we hold that the Extension Agreement was
not an executory contract that terminated automatically
60 days after the Bilskis filed for bankruptcy.
Rather, for purposes of bankruptcy, as for all other
purposes, an 872-A is a waiver of the affirmative
defense of time-bar under the statute of limitations.
[Bilski v. Commissioner, 69 F.3d at 68 (quoting Buchine
v. Commissioner, 20 F.3d 173, 179 (5th Cir. 1994),
affg. T.C. Memo. 1992-36); fn. ref. omitted.]
Applying the reasoning of Stange and Piarulle in the context
of bankruptcy, we find Bilski persuasive. Petitioners have not
provided this Court with a convincing reason or case to the
contrary. As set forth in the Form 872-A, taxpayers wishing to
terminate their extension of the limitations period under this
form should file a Form 872-T. Only by filing a Form 872-T may a
taxpayer terminate the extension provided by a Form 872-A; no
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