June 10, 1977
SCHUSTER'S EXPRESS, INC., APPELLEE
COMMISSIONER OF INTERNAL REVENUE, APPELLANT.
Before FRIENDLY, TIMBERS and MESKILL, Circuit Judges.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged and decreed that the decision of the Tax Court is affirmed on the opinion of the Tax Court (Goffe, J.) filed June 24, 1976, 66 T.C. No. 56, to the extent of the sole issue before us, i.e. the correctness of the Tax Court's holding that the Commissioner's disallowance of the taxpayer's deductions for the years 1966 and 1967 were barred by the statute of limitations. The Tax Court's holding was correct because the Commissioner did not sustain the burden, concededly resting upon him in the special circumstances of this case of showing that the adjustment sought by him was "necessary solely by reason of [a] change" in the taxpayer's method of accounting. I.R.C. § 481.
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