Magaziner v. Commissioner

Memorandum Findings of Fact and Opinion

RAUM, Judge: Petitioners are husband and wife. They filed a joint income tax return for 1950 on March 15, 1951. On April 22, 1955, the Commissioner sent to them a notice of deficiency in the amount of $199.02 plus an addition to tax in the amount of $101.70 pursuant to Section 294(d)(1)(A) of the 1939 Code and a further addition in the amount of $62.48 pursuant to Section 294(d)(2). The question for decision is whether the Commissioner's action was timely.

The initial period of limitations expired on March 15, 1954, and the notice of deficiency was therefore untimely unless the period was extended by waiver. The Government introduced in evidence a waiver consenting to assessment at any time on or before June 30, 1955. It was dated March 5, 1954, and accepted by the Commissioner on March 10, 1954. However, the waiver was signed only by the wife, and the parties have stipulated that she was not acting in this respect on behalf of the husband.

In the circumstances, the period of limitations*227 had expired as against the husband, and the notice of deficiency was untimely with respect to him. Cf. Harry Ekdahl, 18 B.T.A. 1230. However, it was timely with respect to the wife, Edith B. Magaziner, and since the liability of the spouses on a joint return is joint and several, the Commissioner's determination must be approved as against her. No issue, other than the statute of limitations, was raised in the petition. Accordingly, decision will be entered approving the determination of the Commissioner against petitioner Edith B. Magaziner, but disapproving the determination against petitioner David A. Magaziner, Jr.