     Case: 14-60910      Document: 00513093491         Page: 1    Date Filed: 06/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 14-60910                                  FILED
                                  Summary Calendar                            June 25, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
CHARLES T. BRUCE; MARY A. BRUCE,

                                                 Petitioners-Appellants

v.

COMMISSIONER OF INTERNAL REVENUE,

                                                 Respondent-Appellee


                     Appeal from the United States Tax Court
                             Internal Revenue Service
                                   No. 29005-10


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       The only argument made by the Petitioners—that the limitations bar
applies because the deficiency notice was issued more than three years after
the tax return—is meritless. As the Tax Court reasoned, Tax Court Rule 39
expressly requires that a taxpayer specifically allege in their pleading that the
period of limitations has run. The Petitioners acknowledge that they did not
raise this affirmative defense in their petition. Accordingly, the Tax Court


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-60910    Document: 00513093491     Page: 2   Date Filed: 06/25/2015


                                 No. 14-60910

concluded that the taxpayers waived any dispute as to the applicability of the
three-year limitations period by not timely raising the issue.           Accord
Markwardt v. Comm’r of Internal Revenue, 64 T.C. 989, 997 (1975).
      The Tax Court noted that it has the discretion to consider an issue that
was not timely raised, but that it generally does not do so where the party
raises the issue for the first time on brief and the court’s consideration of the
issue would unfairly prejudice the opposing party. The Tax Court further
found that to exercise its discretion and consider the statute of limitations
issue in this case would unfairly prejudice the Commissioner because the
Commissioner had entered into a stipulation with the Petitioners based upon
the valid assumption that the statute of limitations was not at issue because it
had not been pleaded. We agree with the reasoning and conclusions of the Tax
Court.
      Accordingly, the judgment of the Tax Court is AFFIRMED.




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