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What are considered affirmative defenses in a Tax Court case?

Phoenix, AZ |

In Tax Court, the IRS has the burden of proof for their affirmative defenses (Rule 142). I know what affirmative defenses are in a normal civil case, but a Tax Court case is different in that the IRS is defending their determination of income. What are the affirmative defenses that would apply in a Tax Court case?

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Attorney answers 3


I'm not a tax lawyer, but generally affirmative defenses that *might* apply would be things like good faith, necessity, estoppel, justification and statute of limitations. I don't know the facts of your case, and this is not an exhaustive list.


You need to retain a tax attorney to represent you because you have cited the incorrect Tax Court Rule. See Rule 39 which expressly states that affirmative defenses are ". . . res judicata, collateral estoppel estoppel, waiver, duress, fraud and the statute of limitations." There may be additional defenses based on the facts, and applicable case law.

Good luck!
Phillip M. Smith Jr.
Los Angeles Tax & Business Attorney
Licensed in the United States Tax Court

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mr. Smith is licensed to practice law throughout the state of California with offices in Los Angeles County. He is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. His phone number is 323-292-4116 or his email address is


Tax Court Rule 142 points to the list of affirmative defenses in Tax Court Rule 39, and include "res judicata, collateral estoppel, estoppel, waiver, duress, fraud, and the statute of limitations."

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