Flaherty v. COMMISSIONER OF INTERNAL REVENUE, Docket No. 79397.

• Decision Date: 20 May 1937
• Docket Number: Docket No. 79397.
• Parties: ELLA T. FLAHERTY, EXECUTRIX UNDER THE WILL OF WILLIAM FLAHERTY, AND ELLA T. FLAHERTY, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Board of Tax Appeals

35 B.T.A. 1131 (1937)

ELLA T. FLAHERTY, EXECUTRIX UNDER THE WILL OF WILLIAM FLAHERTY, AND ELLA T. FLAHERTY, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 79397.

Board of Tax Appeals.

Promulgated May 20, 1937.

A. J. Aldridge, Esq., and J. F. Brennan, Esq., for the petitioner.

Hartford Allen, Esq., for the respondent.

This proceeding involves a deficiency upon a joint income tax return assessed against Ella T. Flaherty both as executrix of the will of her husband, William Flaherty, deceased, and as an individual. The deficiency arises out of additions to the gross income of William Flaherty, deceased, unreported, giving rise to a deficiency of $37,434.43 for the year 1932. The petitioner, as executrix, does not contest the validity of the respondent's correction of the taxable income of the decedent, but denies individual liability for the deficiency on the ground that no part of her individual income contributed to the deficiency.

FINDINGS OF FACT.

In the year 1932 William Flaherty and Ella T. Flaherty were married and living together, residing in Boston. William Flaherty was an attorney engaged in the practice of his profession and deriving his income therefrom. Ella T. Flaherty's separate income was not more than $182, interest from bank deposits received during the taxable year. William Flaherty filed an income tax return on form 1040 and filled in the word "Yes" in answer to the question printed on the form, "Is this a joint return of husband and wife?" On this return he reported "Income from Business or Profession" $19,631.14 and "Interest on bank deposits" $182; total income, $20,813.14.

The item of $19,631.14 was the income of William Flaherty, deceased, and not the income of Ella T. Flaherty. All additions to taxable income determined by the respondent are the personal income of William Flaherty, deceased. Ella T. Flaherty is the executrix under the will of William Flaherty, deceased.

OPINION.

HARRON:

The notice of deficiency, having been mailed to Ella T. Flaherty both as executrix and as an individual, seeks to impose liability upon Ella T. Flaherty as an individual for the entire amount of the deficiency assessed by respondent, and Ella T. Flaherty, as an individual, denies such liability. This Board has held that the filing of a joint return by husband and wife does not thereby make them a single taxing entity. Frank B. Gummey, 26 B. T. A. 894. The revenue act provides that "There shall be levied,...