REPORTS

OF THE

UNITED STATES TAX COURT

SHELBY L. JORDAN AND DONAZELLA H. JORDAN, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE,

RESPONDENT

Docket No. 14572-07L.

Filed January 11, 2010.

P wife signed a Form 900, Tax Collection Waiver, containing a waiver extending the 10-year period of limitations on collection for the first 4 of the tax years in issue. After signing the waiver, Ps entered into an installment agreement with R. Although P husband's signature purportedly appears on the Form 900, P husband contends that he never signed the Form 900 and, therefore, the waiver is invalid as to both Ps. R contends that P husband signed the waiver and that, if P husband did not sign the waiver, the waiver is nevertheless valid as to both Ps. Ps also contend that R failed to send Ps a notice of deficiency for the tax years in issue. Held: Adler v. Commissioner, 85 T.C. 535 (1985), which delineates the parties' respective burdens of production and proof regarding the 3-year period of limitations on assessment under sec. 6501(c)(4), I.R.C., also applies to cases involving the 10-year period of limitations on collection under sec. 6502(a)(1), I.R.C. Held, further, P wife may separately enter into a valid waiver of the 10-year period of limitations on collection for tax years for which she has filed a joint tax return, and the waiver is valid as to her. The waiver, however, is not valid as to P husband unless he also signed the Form 900 or unless he may not otherwise repudiate it. Held, further, because the waiver of the 10-year period of limitations on collection is a dispute regarding the underlying liability, we review de novo the issue of whether P husband's signature on the Form 900 is authentic. Held, further, Ps did not meet their burden of

proving that P husband did not sign the Form 900. Held, fur-
ther, alternatively, regardless of the authenticity of P hus-
band's signature, P husband may not repudiate the waiver
contained in the Form 900. Held, further, because it is unclear
from the record whether a notice of deficiency was sent to Ps
for certain of the tax years in issue, we remand the case to
R's Appeals Office to clarify the record pursuant to Hoyle v.
Commissioner, 131 T.C. 197, 205 (2008), as to those years.

Pierce J. Guard, Jr., for petitioners.

Jeffrey S. Luechtefeld, for respondent.

OPINION

WELLS, Judge: Respondent sent a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of determination) to petitioners with respect to a lien filed to collect petitioners' unpaid tax liabilities for their 1986, 1987, 1988, 1989, 1994, and 1995 tax years. In response, petitioners timely filed a petition pursuant to section 6330(d) seeking review of respondent's determination. 1 We must decide the following issues: (1) Whether petitioners bear the burden of proof; (2) whether the signature of one spouse, who filed a joint return with the other spouse, is sufficient to bind both spouses to the waiver of the 10-year period of limitations contained in Internal Revenue Service (IRS) Form 900, Tax Collection Waiver; (3) if one spouse's signature is insufficient to bind both such spouses on the Form 900, whether petitioner husband signed the Form 900 and whether our standard of review of that issue is de novo or abuse of discretion; (4) whether petitioner husband may repudiate the Form 900 after respondent relied upon it to enter into an installment agreement with petitioners; and (5) whether respondent sent petitioners a notice of deficiency for the tax years 1986, 1988, and 1989. 2

Background

Some of the facts and certain exhibits have been stipulated. The stipulations of fact are incorporated in this Opinion by reference and are found accordingly.

1 Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code, as amended.

2 Petitioners concede that the notice of Federal tax lien for tax years 1994 and 1995 was sent within the period of limitations on collection.

At the time the petition was filed, petitioners resided in California.

Petitioners are husband and wife. Petitioners filed joint Federal income tax returns for the tax years in issue.

Petitioner Shelby L. Jordan (Mr. Jordan) was a professional football player in the National Football League (NFL). On April 3, 1989, respondent assessed petitioners' income tax for their 1987 tax year after petitioners filed a Federal income tax return and did not pay the tax shown on the

return.

On June 1, 1992, respondent assessed petitioners' income tax for their 1986 tax year on the basis of an audit of petitioners' return for that year.

On April 26, 1993, respondent assessed petitioners' income tax for their 1988 and 1989 tax years on the basis of an audit of petitioners' returns for those years.

On March 2, 1995, petitioner Donazella H. Jordan (Mrs. Jordan) signed Form 900 containing a waiver until December 31, 2010, of the period of limitations on collection of petitioners' tax due for petitioners' 1985, 1986, 1987, 1988, and 1989 tax years. The Form 900 contains a signature purporting to be Mr. Jordan's, but Mr. Jordan disputes that the signature is his. Respondent's revenue officer W. Wallace (Ms. Wallace) signed the Form 900 on March 6, 1995, on behalf of respondent. On March 20, 1995, petitioners entered into an installment agreement for their 1985, 1986, 1987, 1988, and 1989 tax years (installment agreement). 3

On July 8, 1996, respondent assessed petitioners' income tax for their 1994 tax year after petitioners filed a Federal income tax return for that year but failed to pay the tax shown on the return.

On September 30, 1996, respondent assessed petitioners' income tax for their 1995 tax year after petitioners filed a Federal income tax return for that year but failed to pay the tax shown on the return.

3 Generally, any extension of the period of limitations on collection made before Dec. 31, 1999, would have expired on Dec. 31, 2002. However, any extension of the limitations period made in connection with an installment agreement will expire 90 days after the end of the extension period. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3461(c)(2), 112 Stat. 764. As the Form 900 in the instant case was signed in conjunction with an installment agreement, if valid it would extend the limitations period to Dec. 31, 2010, plus 90 days, or Mar. 31, 2011. See Joy v. Commissioner, T.C. Memo. 2008-197.

On February 22, 2000, petitioners submitted an offer-incompromise for their tax years 1985 through 1989, 1992, and 1994 through 1999. On September 5, 2001, respondent rejected the offer-in-compromise. On June 19, 2002, petitioners paid respondent in full for their 1985, 1996, 1997, 1998, 1999, and 2000 tax years.

On February 13, 2007, respondent sent petitioners a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 with respect to their unpaid tax liabilities for their 1986, 1987, 1988, 1989, 1994, and 1995 tax years (NFTL).

On March 13, 2007, petitioners timely submitted a Form 12153, Request for a Collection Due Process or Equivalent Hearing. At the hearing, petitioners raised the issue of whether the 10-year period of limitations on collection remained open and whether the Form 900 was valid, contending that the signature on the Form 900 purporting to be Mr. Jordan's was not, in fact, his signature.

Appeals Officer S. Lavenburg (Ms. Lavenburg) conducted the review of petitioners' file. On May 1, 2007, Ms. Lavenburg contacted Ms. Wallace, the revenue officer at the time the Form 900 was signed. The notice of determination states that Ms. Wallace confirmed to Ms. Lavenburg that both petitioners signed the Form 900 on March 2, 1995, and that she specifically remembered Mr. Jordan signing because he was an “N.F.L. player." On May 2, 2007, Ms. Lavenburg contacted petitioners' representative, J. Behar (Mr. Behar), and discussed the validity of Mr. Jordan's signature on the Form 900. Ms. Lavenburg declined petitioners' request that the IRS hire a handwriting expert to confirm that the signature was in fact Mr. Jordan's signature. On May 15, 2007, Ms. Lavenburg compared the signature on the Form 900 to those on petitioners' 1989 and 1995 Federal income tax returns and noted that the signature on the Form 900 matched that on the 1989 return but not that on the 1995 return. Ms. Lavenburg ultimately concluded that the filing of the NFTL was appropriate.

By letter dated May 24, 2007, respondent sent petitioners a notice of determination sustaining the filing of the NFTL with respect to petitioners' 1986, 1987, 1988, 1989, 1994, and 1995 tax years. Petitioners timely filed with this Court a petition for review of respondent's determination.