Ch J Maurice B (“Mighty Mo”) Foley is positively parsimonious with designated orders. True, most of his orders deal with assigning places of trial to those who can’t figure out a simple form, warning various and nefarious wits, wags and wiseacres about Section 6673 frivolity chops, telling wannabe forma pauperi they’re too rich for a freebie, and retitling ill-drawn pleadings and papers.

But today he has a one-paragraph summation of Statute of Limitations that is worth keeping in mind, even for the battle-hardened pro.

Here’s George J. Costello & Maureen H. Costello, Docket No. 6435-19, filed 9/13/19.

Based on the following, you’d ha’ thought Ch J Mighty Mo would have tossed Geo and Mo on the spot.

“…petitioners state that they are both in their eighties and considered disabled. Petitioners did not attach a notice of deficiency to their petition, nor did they pay the Court’s $60.00 filing fee.

“By Order…the Court directed petitioners to pay the Court’s filing fee. To date, petitioners have not complied with the Court’s Order.” Order, at p. 1.

But IRS hasn’t helped its case.

IRS “…filed an Answer therein making affirmative allegations in response to petitioners’ claim that the Internal Revenue Service’s determination ‘is border-line Statute of Limitation’s’ [sic]. Respondent attached to the Answer a notice of deficiency… for petitioners’ 2016 taxable year. The notice of deficiency proposed a change to petitioners’ taxable income for 2016 in the amount of $8,597 and a deficiency of $853.” Order, at p. 1.

Two months later, “…respondent filed a Motion For Entry of Order that Undenied Allegations Be Deemed Admitted Pursuant to Rule37(c). Respondent states therein that: ‘Petitioners do not object to this motion.’” Order, at p. 1.

Now pay attention, as Judge Holmes would say.

“We note that when a party pleading the affirmative defense of the statute of limitations has established a prima facie case, the burden of going forward with the evidence shifts to the other side. Adler v. Commissioner, 85 T.C. 535, 540 (1985). However, the Court has held that the burden of proof does not shift from the party who pleads the bar of the statute of limitations. Given that respondent does not have the burden of proof with respect to the affirmative allegations made in the answer, it would appear that respondent’s motion is unnecessary. Furthermore, although respondent asserts that petitioners do not object to the motion, respondent has not asserted that petitioners do not object to the granting of the motion. Accordingly, we will deny respondent’s motion.” Order, at pp. 1-2.

But Ch J Mighty Mo does give Geo and Mo dispensation from the filing fee, and a list of local LITCs.

And gives IRS’ counsel the time-honored right-about-face.