                    119 T.C. No. 7



                UNITED STATES TAX COURT



     PETER M. AND SUSAN L. HOFFMAN, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 16028-99L.            Filed September 24, 2002.



     On Sept. 10, 1991, Ps timely filed a joint 1990
Federal income tax return on which they reported that
they: (1) Held a general partner interest in one
partnership and limited partner interests in five
partnerships and (2) did not under sec. 469, I.R.C.,
materially participate in any of the partnerships.
On Sept. 8, 1997, Ps filed an amended return for 1990
reporting additional income and remitting the tax due
on that additional income. On Nov. 6, 1997, R assessed
the additional tax liability reported on the amended
return and assessed other amounts for a penalty and
interest on that additional tax liability.

     Subsequently, R issued to Ps a notice of intent to
levy, and Ps requested and received a hearing under
sec. 6330, I.R.C. At the hearing, Ps contended that
the additional tax liability reported in 1997, the
penalty, and the interest were all assessed after the
expiration of the period of limitations and that they
were entitled to a refund of the amount paid with the
                                  -2-

     amended return. R rejected those arguments in a notice
     of determination issued to Ps sustaining the proposed
     levy. R determined that the applicable period of
     limitations is the 6-year period under sec.
     6501(e)(1)(A), I.R.C., and that the assessment was
     timely because the amended return was filed 2 days
     before the expiration of the 6-year period. R argues
     that the 6-year period applies because, R asserts, the
     reference to “gross income stated in the return” in
     sec. 6501(e)(1)(A), I.R.C., does not include any of the
     income of the partnerships given that Ps neither
     actively nor materially participated in the trade or
     business of any of those partnerships.

          Held: The 6-year period of limitations in sec.
     6501(e)(1)(A), I.R.C., is inapplicable, and the
     assessment made on Nov. 6, 1997, was untimely. Ps’
     “gross income stated in the return” is determined by
     reference to the information returns of the
     partnerships.



     Steven Toscher, Stuart A. Simon, and Bruce I. Hochman, for

petitioners.

     Daniel M. Whitley and Irene S. Carroll, for respondent.



                                OPINION


     LARO, Judge:    Petitioners petitioned the Court under section

6330(d), and the parties submitted the case to the Court fully

stipulated.    See Rule 122.   We decide herein whether respondent

assessed certain amounts against petitioners within the period

allowed by section 6501.    We hold respondent did not.   Unless

otherwise indicated, section references are to applicable

versions of the Internal Revenue Code.    Rule references are to
                                -3-

the Tax Court Rules of Practice and Procedure.   Petitioners

resided in Los Angeles, California, when the petition was filed.

     Peter M. Hoffman and Susan L. Hoffman (Mr. Hoffman and

Ms. Hoffman, respectively) filed a joint Federal income tax

return for 1990.   Before filing that return, they requested from

respondent two extensions of time to file, both of which were

granted.   Their 1990 Federal income tax return (the original

return) was received by respondent on September 10, 1991.

     The original return reported that either Mr. or Ms. Hoffman

was a partner in the following partnerships:   (1) Twelve Star

Partners, Ltd., (2) Thirteen Star Partners Limited, (3) Cabrillo

Palms Associates, (4) Desert Investments, (5) Joliet Television

Stations, L.P., and (6) Orbis Television Stations, L.P.    The

original return reported that either Mr. or Ms. Hoffman held a

limited partner interest in the partnerships, except for Desert

Investments, in which the original return reported that one of

petitioners was a general partner.    The original return reported

that neither petitioner “materially participated” in the

activities of any of these partnerships within the meaning of

section 469.   The original return reported that petitioners also

were shareholders in an S corporation, Cinema Products Corp.

(Cinema), and that they did not “materially participate” in the

activity of Cinema.
                                 -4-

     Respondent no longer has copies of any of the six

partnerships’ Federal tax returns for 1990, and the

Schedules K-1, Partner’s Share of Income, Credits, Deductions,

etc., are not in the record.    Respondent has a copy of Cinema’s

1990 Form 1120S, U.S. Income Tax Return for an S Corporation.

     The original return reported gross income from wages,

interest, a State tax refund, miscellaneous income, and rental

income totaling $3,019,317.    The original return also reported

long-term capital gain of $5,304 from the partnerships and

section 1231 gain of $76,070 from the S corporation.    The record

does not indicate the gross income of the six partnerships.

     On September 8, 1997, petitioners filed an amended 1990

Federal income tax return (the amended return) that was prepared

by their accountant.1   The amended return shows an additional tax

liability of $218,152, without statutory additions, which was

based upon $779,114 of gross income that was omitted from the

original return.2   The amount omitted from the original return

relates to cancellation of indebtedness income that petitioners

did not report.



     1
       Respondent asserted in the answer that the amended return
was filed pursuant to a plea agreement that settled a criminal
case brought against Mr. Hoffman. See United States v. Hoffman,
No. CR 96-1144(A)-JGD (C.D. Cal.) (the criminal case).
Respondent later conceded that the amended return was not filed
as a condition to the plea agreement.
     2
       Respondent never issued a notice of deficiency to
petitioners for 1990.
                                 -5-

     At or about the time that petitioners filed the amended

return, they remitted payment for the $218,152.    Respondent

assessed the additional tax shown on petitioners’ amended return

on November 6, 1997, which is 59 days after the amended return

was filed.

     On May 6, 1999, respondent issued to petitioners a Notice of

Intent to Levy and Notice of Your Right to a Hearing (notice of

intent to levy).   The notice of intent to levy is not contained

in the record.   The Court understands that respondent proposes to

effect the levy to collect interest and penalties related to the

amount of additional tax liability reported in the amended

return.   The record does not disclose the type of penalties

respondent assessed.

     On May 10, 1999, petitioners timely requested a hearing

under section 6330.    In their request, petitioners stated that

     we are disputing any balance due and are requesting a
     refund of $218,152 paid in error.

     Mr. and Mrs. Hoffman filed a form 1040X in 1997 for the
     year 1990. They paid $218,152 of additional tax with
     this form. The IRS is attempting to collect
     accumulated interest and penalty on said amended
     return. [sic]

     The 1990 amended return was filed subsequent to the
     expiration of the statute of limitations and was
     therefore invalid. Assessment of penalties and
     interest is incorrect. The taxpayers are now aware of
     their error and intend to file a Claim for refund of
     the $218,152 paid utilizing the format enclosed.
                                -6-


     The request for a hearing was accompanied by a written

request for a refund, using Form 1040X, Amended U.S. Individual

Income Tax Return, for the additional $218,152 paid with the

amended return.   The request for refund stated that

     Taxpayer filed form 1040X and paid $218,152 of
     additional taxes for 1990 in September 1997. This was
     subsequent to [the] tolling of statute of limitations
     and as such was not valid. This form is being
     completed as a claim for refund. It is being filed
     within the 2 year period of remittance of the erroneous
     tax payment (IRC 6511(b)(2)(B)).

     A Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330 was sent to petitioners on

September 8, 1999.   The Appeals officer determined that

petitioners

     raised the issue of the timely filing of your court
     ordered amended return in your 2nd amended return which
     sought refund of the tax paid with the court ordered
     amended return. The statute of limitations had been
     extended by three years to a six year statute due to an
     amount of unreported income which was in excess of 25%
     of your AGI. Your court ordered amended return was
     filed on September 8, 1997, exactly two days prior to
     the six year statute of September 10, 1997. You have
     no basis for the refund of tax paid with your court
     ordered amended return, and accordingly, no basis for
     relief from the interest charged on such deficiency.

     You requested a Collection Due Process hearing. Your
     representative appeared at the hearing and indicated
     that you felt that the proposed levies were intrusive
     because you had filed your court ordered amended return
     after the statute of limitations had expired. If the
     statute of limitations had expired it would mean that
     the payment you made when the amended return was filed
     was a voluntary payment and there was no basis for
     charging interest on the voluntary payments.
     Additionally, you sought refund of tax paid with such
     court ordered amended return in the amount of $218,152.
                                -7-

     It is determined that you have no basis for refund of
     $218,152, nor is there basis for relief from the
     statutory interest being sought by the government. You
     have offered no other alternative means of disposing of
     your liability, accordingly standard collection means
     will be pursued.

In making this determination, the Appeals officer did not review

the 1990 tax returns for the six partnerships in which

petitioners were partners.

     In this proceeding, petitioners’ sole allegation is that the

Appeals officer erroneously determined that the assessment of the

penalty and interest was proper.   Petitioners allege that the

assessments were made after the expiration of the period of

limitations provided in section 6501.   We agree that the

assessment was untimely.

     Any amounts assessed, paid, or collected after the

expiration of the period of limitations are overpayments.

Sec. 6401(a); Estate of Michael v. United States, 173 F.3d 503

(4th Cir. 1999); Alexander v. United States, 44 F.3d 328

(5th Cir. 1995); Ewing v. United States, 914 F.2d 499 (4th Cir.

1990); Philadelphia & Reading Corp. v. United States, 944 F.2d

1063 (3d Cir. 1991).   Accordingly, if the period of limitations

expired before either formal assessment by respondent or payment

by petitioners, then petitioners are not liable for any tax on

the cancellation of indebtedness income.   Ill. Masonic Home v.

Commissioner, 93 T.C. 145 (1989); Diamond Gardner Corp. v.

Commissioner, 38 T.C. 875, 881 (1962) (“any payment by a taxpayer
                                 -8-

of a barred tax liability, whether voluntary or involuntary,

automatically becomes an ‘overpayment’ and hence subject to

mandatory refund [under section 6402(a)]”).   If petitioners’

liability for the tax attributable to the cancellation of

indebtedness income was eliminated by the expiration of the

period of limitations, petitioners cannot be liable for any

interest or a penalty.

      Respondent contends that the additions to tax were timely

assessed pursuant to exceptions to the general 3-year period of

limitations.   Sec. 6501(c)(7), (e).   Respondent has conceded that

petitioners were not contractually obligated to file the amended

return as part of the plea agreement that settled the criminal

proceeding.    Moreover, respondent has conceded that petitioners

are not estopped from asserting the defense of period of

limitations merely because they voluntarily filed an amended

return and paid the additional tax liability.

A.   Standard of Review

      Where the validity of the underlying tax liability is

properly at issue in an appeal brought under section 6330(d),

the Court will review the taxpayer’s liability under the de novo

standard.   Where the underlying liability is not at issue, the

Court will review the Commissioner’s administrative determination

for abuse of discretion.    Sego v. Commissioner, 114 T.C. 604, 610

(2000).   To determine which standard of review applies, the Court
                                  -9-

must decide whether petitioners’ underlying tax liability is at

issue.   A taxpayer may challenge “the existence or amount of the

underlying tax liability for any tax period if the * * *

[taxpayer] did not receive any statutory notice of deficiency for

such tax liability or did not otherwise have an opportunity to

dispute such tax liability.”    Sec. 6330(c)(2)(B).

     At the hearing, petitioners questioned whether the

assessment had been made within the limitations period.

Raising the issue of whether the limitations period has expired

constitutes a challenge to the underlying tax liability.     Boyd

v. Commissioner, 117 T.C. 127 (2001); see also MacElvain v.

Commissioner, T.C. Memo. 2000-320.

     Under section 6330(c)(2)(B), the underlying liability is

properly at issue if the taxpayer did not receive any statutory

notice of deficiency or did not otherwise have an opportunity to

dispute the tax liability.     Goza v. Commissioner, 114 T.C. 176,

181 (2000).   An opportunity to dispute a liability includes a

prior opportunity for a conference with Appeals that was offered

either before or after the assessment of the liability.     Sego v.

Commissioner, supra at 609-610.

     In the instant case, respondent’s assessment was the result

of petitioners’ voluntarily filed amended return.     No notice of

deficiency was issued to petitioners, and petitioners have not

otherwise had an opportunity to dispute the tax liability.
                                 -10-

Accordingly, whether the assessment was made during the

limitations period is reviewed de novo.

B.   Period of Limitations

      Section 6501(a) generally provides that a valid assessment

of income tax liability may not be made more than 3 years after

the later of the date the tax return was filed or the due date of

the tax return.3     This 3-year period as to petitioners’ 1990

taxable year expired before respondent assessed the statutory

additions at issue.4     In order for respondent’s assessment of the

statutory additions to be timely, an exception to the general

3-year period of limitations must apply.

      1.    Burden of Proof

      Petitioners contend that respondent assessed the relevant

amounts for 1990 after the expiration of the 3-year period of

limitations in section 6501(a).     The bar of the period of

limitations is an affirmative defense, and the party raising this



      3
          Sec. 6501 provides in pertinent part as follows:

      SEC. 6501.    LIMITATIONS ON ASSESSMENT AND COLLECTION.

           (a) General Rule.-–Except as otherwise
      provided in this section, the amount of any tax imposed by
      this title shall be assessed within 3 years after the return
      was filed (whether or not such return was filed on or after
      the date prescribed) * * * and no proceeding in court
      without assessment for the collection of such tax shall be
      begun after expiration of such period. * * *
      4
       The original return for 1990 was filed on Sept. 10, 1991,
and the assessments of penalties and interest were made on
Nov. 6, 1997.
                                -11-

defense must specifically plead it and prove it.      Rules 39,

142(a); Mecom v. Commissioner, 101 T.C. 374, 382 (1993), affd.

without published opinion 40 F.3d 385 (5th Cir. 1994).      Because

petitioners have pleaded the defense properly, we proceed to

address their contention.

     In questioning the validity of the assessment by asserting

that it was made after the expiration of the 3-year period of

limitations, petitioners initially must prove:      (1) The filing

date of their 1990 tax return and (2) that respondent assessed

the relevant amounts after the expiration date of the 3-year

period.   Reis v. Commissioner, 142 F.2d 900 (6th Cir. 1944),

affg. 1 T.C. 9, 12 (1942), as modified by a Memorandum Opinion of

this Court dated June 4, 1943; Harlan v. Commissioner, 116 T.C.

31, 39 (2001) (and cases cited therein); see Mecom v.

Commissioner, supra at 382.    Respondent concedes that petitioners

have proven both prongs.    Thus, petitioners have established a

prima facie case that the period of limitations precludes

respondent from making the relevant assessment for 1990, and the

burden of going forward shifts to respondent.      See Mecom v.

Commissioner, supra at 382.    Respondent must introduce evidence

that the assessment for 1990 is not barred by the period of

limitations under section 6501(a).      Id.   If respondent makes such

a showing, the burden of going forward with the evidence shifts

back to petitioners.   Id. at 383.     Notwithstanding the shifting

of the burden of going forward, the burden of ultimate persuasion
                                -12-

never shifts from the party who pleads the bar of the period of

limitations.    Stern Bros. & Co. v. Burnet, 51 F.2d 1042 (8th Cir.

1931), affg. 17 B.T.A. 848 (1929); Mecom v. Commissioner, supra

at 383 n.16.

     2.    Six-Year Period of Limitations

     Respondent relies on the 6-year period of limitations under

section 6501(e) as an exception to the general 3-year period.

Section 6501(e) generally provides that a 6-year period of

limitations is applicable when a taxpayer omits from gross income

an amount includable therein which is greater than 25 percent of

the amount of gross income stated in the return.5      Once


     5
         SEC. 6501(e) provides, in pertinent part, as follows:

           SEC. 6501(e). Substantial Omission of
     Items.-–Except as otherwise provided in subsection
     (c)--

                 (1) Income taxes.-–In the case of any
            tax imposed by subtitle A--

                      (A) General rule.-–If the
                 taxpayer omits from gross income an
                 amount properly includible therein
                 which is in excess of 25 percent of
                 the amount of gross income stated
                 in the return, the tax may be
                 assessed, or a proceeding in court
                 for the collection of such tax may
                 be begun without assessment, at any
                 time within 6 years after the
                 return was filed. For purposes of
                 this subparagraph–-

                           (i) In the case of a
                                                       (continued...)
                                 -13-

petitioners establish the prima facie case that the general

period of limitations has expired, respondent bears the burden of

going forward to establish that the amount petitioners omitted

exceeds 25 percent of the gross income reported in their return.

It is well established in this Court that for purposes of section

6501(e), a taxpayer-partner’s return includes the information

returns of partnerships of which the taxpayer was a member and

that were identified on the taxpayer-partner’s return.   Harlan v.

Commissioner, supra; Davenport v. Commissioner, 48 T.C. 921



     5
      (...continued)
                       trade or business, the
                       term “gross income” means
                       the total of the amounts
                       received or accrued from
                       the sale of goods or
                       services (if such amounts
                       are required to be shown
                       on the return) prior to
                       diminution by the cost of
                       such sales or services;
                       and

                            (ii) In determining
                       the amount omitted from
                       gross income, there shall
                       not be taken into account
                       any amount which is
                       omitted from gross income
                       stated in the return if
                       such amount is disclosed
                       in the return, or in a
                       statement attached to the
                       return, in a manner
                       adequate to apprise the
                       Secretary of the nature
                       and amount of such item.
                               -14-

(1967).   Accordingly, to satisfy the burden of going forward,

respondent must provide evidence to show the amounts of gross

income reported on the partnership and S corporation returns or

to show that no such returns were filed.   Davenport v.

Commissioner, supra at 928; Roschuni v. Commissioner, 44 T.C. 80

(1965).

     Respondent has provided none of the income tax returns for

the six partnerships of which petitioners were partners.

Moreover, respondent has not alleged, much less established, that

any of the six partnerships failed to file returns for 1990.

Instead, respondent alleges that his burden of going forward does

not include production of the partnership returns.   We disagree.

     The 6-year period of limitations provided for in section

6501(e) is implicated if the taxpayer omitted from gross income

an amount greater than 25 percent of the taxpayer’s gross income

as stated on the Federal income tax return.   The amount

petitioners omitted, the numerator in the calculation, is not in

dispute in this case.   The amount omitted is $779,114.    The

parties disagree, however, as to the amount of gross income

stated in their return.

     Gross income is not defined in section 6501.    We have held,

however, that the general definition of gross income found in the

Code applies to section 6501(e), except for the modification

provided in section 6501(e)(1)(A)(i).   N. Ind. Pub. Serv. Co. &
                               -15-

Subs. v. Commissioner, 101 T.C. 294, 299 n.7 (1993).     Section

6501(e)(1)(A)(i) provides a special definition of gross income in

the context of a trade or business.     That section provides that

as applied to a trade or business, “gross income” includes the

total of the amounts received or accrued from the sale of goods

or services before diminution by the cost of those sales or

services.   Sec. 6501(e)(1)(A)(i).    With regard to a taxpayer-

partner, we have interpreted this provision as requiring that a

taxpayer’s gross income include her share of the partnership’s

gross receipts from the sale of goods or services.     Harlan v.

Commissioner, 116 T.C. 31 (2001); Estate of Klein v.

Commissioner, 63 T.C. 585, 591 n.6 (1975), affd. 537 F.2d 701

(2d Cir. 1976).   In essence, the taxpayer-partner’s share of the

partnership’s gross receipts is used in determining total gross

income of the taxpayer, the denominator in our calculation.

     Here, respondent argues that petitioners’ interests in the

six partnerships do not implicate section 6501(e)(1)(A)(i).

According to respondent, if the partner did not actively

participate in the partnership, the partner is not engaged in a

trade or business, and the “gross receipts” definition of section

6501(e)(1)(A)(i) is not implicated.     Thus, respondent contends,

the general meaning of gross income should apply, and only the

taxpayer-partner’s share of income from the partnership that was

already included in the taxpayer-partner’s return is included in
                               -16-

the calculation of gross income.   Such an approach would

eliminate the need to review the partnership’s tax returns, and

respondent would have satisfied his burden.   We have not

previously addressed whether section 6501(e)(1)(A) is applicable

only to situations in which the taxpayer-partner did materially

or actively participate in the partnership.   We hold that it is

not so limited.

     A general partner may be deemed to be conducting the trade

or business activity of the partnership of which she is a member.

Flood v. United States, 133 F.2d 173, 179 (1st Cir. 1943); Cokes

v. Commissioner, 91 T.C. 222, 228 (1988); Drobny v. Commissioner,

86 T.C. 1326 (1986); Brannen v. Commissioner, 78 T.C. 471 (1982),

affd. 722 F.2d 695 (11th Cir. 1984); Hagar v. Commissioner,

76 T.C. 759 (1981); Ward v. Commissioner, 20 T.C. 332 (1953),

affd. 224 F.2d 547 (9th Cir. 1955); Cluet v. Commissioner, 8 T.C.

1178, 1180 (1947); see sec. 1.702-1(b), Income Tax Regs.     See

generally Rev. Rul. 92-17, 1992-1 C.B. 142.   Moreover, the trade

or business of the partnership may be imputed to a general

partner, irrespective of the fact that the partner did not

actively or materially participate in the partnership.      Bauschard

v. Commissioner, 31 T.C. 910 (1959), affd. 279 F.2d 115 (6th Cir.

1960).   It is also possible for the trade or business activity of

a limited partnership to be imputed to a limited partner.

Newhall Unitrust v. Commissioner, 104 T.C. 236 (1995), affd.
                                -17-

105 F.3d 482 (9th Cir. 1997); Butler v. Commissioner, 36 T.C.

1097 (1961).   Additionally, an individual taxpayer may be engaged

in more than one trade or business.    Oliver v. Commissioner,

138 F.2d 910 (4th Cir. 1943), affg. a Memorandum Opinion of this

Court.

     Respondent argues that we should not impute the trade or

business of a partnership to a partner, limited or general, who

does not actively or materially participate in a partnership.

Essentially, respondent suggests, section 6501(e)(1)(A)(i) does

not include those activities that qualify as “passive activities”

under section 469(c).   Respondent has provided no support for

this argument, other than his view that a partner who does not

materially participate in a partnership is simply an investor.

We see no reason to so limit the application of section

6501(e)(1)(A)(i).    That provision of the Code does not indicate

that a partner must materially or actively participate in the

trade or business.   In fact, respondent has conceded that the

partnerships are engaged in trade or business activities.    We

hold that section 6501(e)(1)(A)(i) does not require that a

partner materially participate, as defined by section 469, in the

trade or business activity.

     The gross receipts definition of gross income provided in

section 6501(e)(1)(A)(i) is implicated, and petitioners’ gross

income for purposes of that provision includes their share of the
                                 -18-

partnerships’ gross receipts.    Respondent has not shown whether

Desert Investments or the other partnerships filed 1990 Federal

income tax returns and, if so, the amount of gross receipts

reported therein.    We conclude that respondent has failed to meet

his burden of production with respect to establishing the amount

of gross income stated on petitioners’ 1990 Federal income tax

return.   Respondent has failed to show that the 6-year period of

limitations is applicable.    Therefore, the general 3-year period

of limitations is applicable.    Sec. 6501(a).

     Petitioners’ return was filed on September 10, 1991, and the

3-year period of limitations ended on September 10, 1994.        Any

amounts assessed, paid, or collected after that date are barred

by expiration of the period of limitations.      Sec. 6401(a).   Thus,

petitioners’ liability for the tax on the cancellation of

indebtedness income was eliminated when the period of limitations

expired before either formal assessment by respondent or payment

by petitioners.     Ill. Masonic Home v. Commissioner, 93 T.C. 145

(1989); Diamond Gardner Corp. v. Commissioner, 38 T.C. 875

(1962).   Petitioners have no liability for interest or a penalty

relating to a tax liability that was eliminated by the expiration

of the period of limitations.    Accordingly, respondent’s proposal
                              -19-

to levy upon petitioners’ property to collect those amounts is

improper.


                                          Decision will be entered

                                     for petitioners.
