Bauer v. Foley
| Decision Date | 08 April 1969 |
| Docket Number | No. 167,Docket 32556.,167 |
| Citation | 408 F.2d 1331 |
| Parties | Stephanie BAUER, Plaintiff-Appellant, v. John E. FOLEY, as District Director of Internal Revenue Service, Buffalo District, and the United States, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
L. Robert Leisner, Buffalo, N. Y., for plaintiff-appellant.
Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Crombie J. D. Garrett, Issie L. Jenkins, Dept. of Justice, Washington, D. C., Andrew F. Phelan, U. S. Atty., and C. Donald O'Connor, Asst. U. S. Atty., Western Dist. of New York, for defendants-appellees.
Before KAUFMAN and ANDERSON, Circuit Judges, and TENNEY, District Judge.*
Supplemental Opinion After Rehearing
After the filing of the opinion and judgment in this case on December 18, 1968, the Government moved for a rehearing, which was granted. Additional briefs were filed by both parties. The Government's principal objection to this court's holding concerns that portion of the opinion which says that § 6303 (a) requires that the assessment notice be given "to each person liable for the unpaid tax, stating the amount and demanding payment thereof" and that the consequence of failing to give such separate notice is that it invalidates the lien subsequently filed. The government asserts that such an application of § 6303 (a) would be contrary to the customary practices of the Internal Revenue Service, followed for many years, and if it were compelled to change its collection methods to comply with this court's holding, the result would be nothing short of devastating to the present procedures. While it is apparent that the Government's arguments contain a certain amount of colorful hyperbole, we shall endeavor to explain in further detail what the effect of the holding is. It must be borne in mind that this court is dealing with a summary judgment. From the evidentiary material before us there was an uncontradicted showing by the taxpayer that her name on the tax returns, jointly with that of her husband, was placed there through forgery or duress. The Government argues that this makes no difference because the single joint notices of deficiency and assessment sent to the husband and wife are conclusive on the issue of her knowledge of the deficiency and the assessment and that she is bound thereby as one acting jointly with her husband even though she never in fact freely, knowingly and intentionally made a joint return with him. It cites cases which hold that a single notice and demand sent in the name of a partnership is notice to all partners. This, of course, is beyond dispute. But a husband and wife are not, as a matter of law, partners for all purposes. They would only become so for the purpose of liability for income tax if they actually made and filed a joint return.
The Government is particularly troubled about what we said about the notice of assessment and demand for payment and cites authorities to support its contention that a long standing administrative practice in dealing with a statutory provision is of considerable importance and should be upheld. These authorities, however, were considering statutory provisions capable of differing interpretations. Section 6303(a) is not such a statute. Its language is perfectly clear: "* * * the Secretary * * shall * * * give notice to each person liable for the unpaid tax * * *," it goes on to specify how the notice shall be given. But it clearly provides for a notice separately addressed or directed...
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Williams v. United States, Civ. No. LV-2025.
...ability to determine factual issues in such a proceeding compare Bauer v. Foley, 404 F.2d 1215 (2nd Cir. 1968) on rehearing, 408 F.2d 1331 (2nd Cir. 1969) (Court is to decide whether wife-taxpayer's signatures on returns were result of forgery or duress), with Trent v. United States, 442 F.......
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Toscano v. CIR
...under duress, cannot impose liability upon her for his taxes. Bauer v. Foley, 2 Cir. 1968, 404 F.2d 1215, and supplemental opinion, 1969, 408 F.2d 1331.3 In that case, the joint notice of deficiency was mailed only to the husband, under 26 U.S.C. § 6212(b) (2) (1964 ed.). The court did not ......
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Laino v. U.S., 85
...supra, 416 U.S. at 732 n. 7, 94 S.Ct. at 2044 n. 7.3 Our decision in Bauer v. Foley, 404 F.2d 1215 (2 Cir. 1968), on rehearing, 408 F.2d 1331 (2 Cir. 1969), cited by counsel for appellants at oral argument, has no application to the facts of this case. There the plaintiff had not received a......
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Viva Ltd. v. United States
...are raised, whether the government has complied with the necessary notice and other procedural requirements. See, e.g., Bauer v. Foley, 408 F.2d 1331, 1333 (2d Cir.1969) ("The consequence of such a defect in the notice required by 26 U.S.C. section 6303, in the absence of proof by the Gover......