Dolan v. Comm'r of Internal Revenue, Docket No. 4892-62.
| Decision Date | 23 June 1965 |
| Docket Number | Docket No. 4892-62. |
| Citation | 44 T.C. 420 |
| Parties | MARIE A. DOLAN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Martin A. Rosenberg, for the petitioner.
James H. Martin, for the respondent.
1. Petitioner's claim that her signatures on 1957 and 1958 Federal income tax returns headed ‘John T. & Marie A. Dolan’ were forged or procured by fraud is rejected. Accordingly, the returns are joint returns of petitioner and John T. Dolan.
2. On June 29, 1962, John T. Dolan filed with respondent a waiver of restrictions on assessments and collection of certain deficiencies in 1957 and 1958 income taxes; on August 31, 1962, such deficiencies were assessed against John. Held, the assessments against John did not prevent respondent from subsequently sending to petitioner a valid statutory notice of the same deficiencies.
3. The notice of deficiency sent to petitioner on October 9, 1962, which is stipulated to have been neither a joint notice nor a duplicate original of a joint notice, fully complied with section 6212(b)(2), even though respondent had been notified that petitioner and John T. Dolan had established separate residences. Natalie D. Du Mais, 40 T.C. 269 (1963), overruled. FORRESTER, Judge:
Respondent has determined deficiencies in income tax and additions to tax against petitioner as follows:
+---------------------------------------------+
¦ ¦ ¦Additions to tax ¦
+----+----------+-----------------------------¦
¦Year¦Income tax¦ ¦
+----+----------+-----------------------------¦
¦ ¦ ¦Sec. 6653(a)¦Sec. 6651(a) 1 ¦
+----+----------+------------+----------------¦
¦ ¦ ¦ ¦ ¦
+----+----------+------------+----------------¦
¦1957¦$3,925.49 ¦$196.27 ¦ ¦
+----+----------+------------+----------------¦
¦1958¦2,871.32 ¦166.48 ¦$287.13 ¦
+----+----------+------------+----------------¦
¦ ¦ ¦ ¦ ¦
+---------------------------------------------+
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
During the taxable years petitioner resided in Brentwood, St. Louis County, Mo. Federal income tax returns for 1957 and 1958, headed ‘John T. & Marie A. Dolan,‘ were filed with the district director of internal revenue, St. Louis, Mo. Petitioner did not file separate individual income tax returns for 1957 or 1958.
Petitioner and John T. Dolan (hereinafter referred to as John) were married in June 1928. They filed joint Federal income tax returns for 1956 and some other years prior to 1957. The 1956 return of John and petitioner was received by the district director at St. Louis on April 18, 1957.
During 1956 and the first half of 1957 John increasingly neglected his obligation to support petitioner and their minor children. In 1957, he consistently failed to pay the household obligations, and only provided money when petitioner and the children were in need of groceries. He spent a great deal of time away from home on various trips and frequently came home under the influence of alcohol. On one occasion in July 1957 he hit petitioner with a chair, then kicked her after she fell down. Shortly thereafter, petitioner and John permanently ceased living together. They were not, however, separated under a decree of divorce or separate maintenance at any time during 1957 or 1958.
On January 2, 1957, while petitioner and John were still living together as husband and wife, one Earl N. Page and his wife executed a warranty deed conveying certain real property (sometimes hereinafter referred to as the Lindbergh Boulevard property) located in St. Louis County, Mo., to petitioner and John. On the same day petitioner and John executed a deed of trust covering the property to secure the purchase price. The following day, January 3, 1957, petitioner and John, by warranty deed, conveyed the Lindbergh Boulevard property to Joseph A. Simpkins and his wife. Joseph A. Simpkins (hereinafter referred to as Simpkins) was at the time and had been for some years John's employer. The purpose and effect of the above-mentioned transfers was to enable Simpkins to provide the money needed to exercise an option held by John on the property. It was agreed that John and petitioner would receive one-half the net profits if and when the Lindbergh Boulevard property was sold.
On March 14, 1958,petitioner filed in the Circuit Court, St. Louis County, Mo., a petition seeking divorce from John. On March 17, 1958, there was filed with the district director of internal revenue, St. Louis, Mo., a claim, signed by John and petitioner, for refund of 1956 incomes taxes in the amount of $792.28.
On June 16, 1958, John and petitioner separately agreed to accept a total of $10,000 from Simpkins in exchange for their right to receive one-half the net profits to be realized when and if the Lindbergh Boulevard property was sold. Under the agreement, Simpkins was to pay the $10,000 by delivering to John and petitioner two $2,000 checks payable to John and petitioner jointly, and by delivering to Phil Kopitsky or Bond Investment Co. a check for $6,000 as full payment of a promissory note of John's. As part of the agreement, John and petitioner executed, on June 16, 1958, a quit-claim deed to the Lindbergh Boulevard property in favor of Simpkins and his wife. The provision for two $2,000 checks was insisted upon by Simpkins, who wanted to ensure that petitioner received some of the money. John endorsed one of the $2,000 checks over to petitioner, who, on June 17, 1958, deposited it in her checking account with the St. Louis County National Bank.3 Petitioner was not fully aware of the significance of the above-described agreement and deed; her chief interest was in obtaining money needed to satisfy a number of unpaid bills. On the 1958 Federal income tax return filed in the name of John and petitioner, the amount of $5,000, representing the taxable portion of the $10,000 paid by Simpkins, is reported as a capital gain.
It was also on June 16, 1958, that a Federal income tax return for the calendar year 1957, headed ‘John T. & Marie Dolan,‘ was filed with the district director of internal revenue, St. Louis, Mo.
In connection with her divorce action petitioner filed, on January 12, 1959, a motion for alimony pendente lite and attorney's fees. The motion was granted on February 13, 1959; John was required to pay petitioner $100 per week as temporary alimony, $30 per week for the support of each of the two minor children of the marriage, and $750 for interim attorney's fees, and to deposit $50 as costs of court. John failed to make payments as required by the judgment of the court. Consequently, petitioner, on April 6, 1959, caused execution to issue on such judgment in St. Louis County, Mo., and in the city of St. Louis. Subsequently, on May 4, 1959, petitioner instituted a garnishment action in the Circuit Court, St. Louis County, Mo., against Mary Dolan, John's sister, and against Ashland Oil & Refining Co. The garnishment action was dismissed by petitioner as to Mary Dolan on May 13, 1959, and as to Ashland Oil & Refining Co. on May 22, 1959.
A Federal income tax return for 1958, headed ‘John T. & Marie A. Dolan,‘ was filed with the district director of internal revenue, St. Louis, Mo., on June 15, 1959. On June 25, 1959, a Form 870, accepting overassessments of income tax for the years 1952, 1954, 1955, and 1956 in the respective amounts of $71.09, $200, $427.24, and $407.27, was filed with the district director at St. Louis; this form was signed by John and petitioner.
On May 12, 1960, the Circuit Court of St. Louis County, Mo., granted petitioner a divorce from John. Petitioner received custody of the two minor children. John was ordered to pay petitioner $100 per month for the support of each minor child, $1 per year as alimony, and $750 as additional attorney's fee. Prior to May 12, 1960, no decree of divorce or of separate maintenance had been entered with respect to petitioner's marriage to John.
On or about June 29, 1962, John executed a Form 870, wherein he waived the restrictions on assessment and collection of deficiencies in income tax and additions to tax for the years 1957 and 1958 in amounts identical to those asserted against petitioner and placed in issue in the instant proceeding. Such amounts were assessed against John on August 31, 1962.
The notice of deficiency involved herein was mailed to petitioner at her then address4 on October 9, 1962, which date was within the periods of limitations on assessment, as extended by consents executed by petitioner and respondent, with respect to the years 1957 and 1958. Prior to the date on which the notice of deficiency was mailed, respondent had been notified that John and petitioner had established separate residences and had been given the address of each. Respondent did not mail to John a duplicate original of a joint notice of deficiency, or any statutory deficiency notice, covering the years 1957 and 1958. The notice of deficiency mailed to petitioner was neither a joint notice nor a duplicate original of a joint notice. The notice of deficiency contained the statement, ‘The attached statement shows the computation of the deficiency or deficiencies.’ The statement referred to was headed in the following manner:
Mr. John T. Dolan
Mrs. Marie A. Dolan
(Husband and Wife)
1101A Ralph Terrace
Richmond Heights 17, Missouri
The explanations of several of the asserted adjustments refer to ‘your income tax return for the taxable year 1957 (or 1958).’ The assessments made against John on August 31, 1962, were still outstanding at the time the notice of deficiency was mailed to petitioner.
Petitioner was familiar with Federal income tax returns. She knew what the returns looked like, and she knew that a smaller tax liability usually resulted from filing a joint return than...
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