Bybee v. Commissioner

T.C. Memo. 1996-411

UNITED STATES TAX COURT

GARY A. AND FRANCES BYBEE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent*

Docket No. 43665-86. Filed September 12, 1996.

Gary A. Bybee, pro se.

S. Mark Barnes, for respondent.

SUPPLEMENTAL MEMORANDUM FINDINGS OF FACT AND OPINION

SWIFT, Judge: This matter is before the Court on remand

from the Court of Appeals for the Ninth Circuit in Bybee v.

Commissioner, 29 F.3d 630 (9th Cir. 1994), affg. in part,

*
This opinion supplements Bybee v. Commissioner, T.C. Memo.
1993-232.
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vacating and remanding in part without published opinion T.C.

Memo. 1993-232.

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for 1982, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

All references to petitioner, singular, are to Gary A. Bybee.

In Bybee v. Commissioner, T.C. Memo. 1993-232, we sustained

respondent's Federal income tax deficiency determinations and

additions to tax for 1982, 1983, and 1984, as reflected in the

schedule below:

Additions to Tax
Year Deficiency Sec. 6653(a)(1) Sec. 6653(a)(2) Sec. 6661

1982 $11,047 $552 * $1,105
1983 13,503 675 * 1,350
1984 11,957 598 * 1,196

* 50 percent of interest due on portion of underpayment
attributable to negligence.

In Bybee v. Commissioner, supra, the Court of Appeals for

the Ninth Circuit affirmed our decision relating to petitioners'

1983 and 1984 Federal income tax deficiencies and additions to

tax. With regard, however, to our decision relating to

petitioners' 1982 Federal income tax deficiency and additions to

tax, the Court of Appeals for the Ninth Circuit questioned

whether respondent's notice of deficiency was timely mailed

pursuant to section 6501(a) and remanded that question to us for

our consideration.
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FINDINGS OF FACT

On April 15, 1983, petitioners filed their 1982 joint

Federal income tax return.

In December of 1984, respondent began an audit of

petitioners' 1983 joint Federal income tax return.

In 1985, respondent expanded the audit to include

petitioners' 1982 and 1984 joint Federal income tax returns.

Petitioner refused to provide to respondent's revenue agent any

records relating to 1982 or 1984.

On September 26 and 27, 1985, respondent's revenue agent

requested of petitioner an extension of the period of limitation

on assessment of tax for 1982, which period was due to expire on

April 15, 1986.

On November 19, 1985, petitioner met with respondent's

revenue agent and with the revenue agent's group manager to

discuss the audit generally and the requested extension of the

period of limitation for 1982. During the meeting, the revenue

agent prepared a Form 872, Consent to Extend the Time to Assess

Tax, with regard to petitioners' joint Federal income tax for

1982, reflecting a limitation date of December 31, 1986.

Respondent's revenue agent provided this form to petitioner with

a request to sign the form and to return it to respondent by

December 20, 1985.
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On December 17, 1985, respondent received, via certified

mail, the above Form 872 signed by petitioners and dated

December 12, 1985. On December 30, 1985, respondent's authorized

representative signed this Form 872.

On September 9, 1986, more than 3 months before the

December 31, 1986, expiration date, respondent mailed the notice

of deficiency with regard to petitioners' 1982 Federal income

tax.

OPINION

Section 6501(a) provides the general 3-year period of

limitations applicable to respondent's authority to assess

Federal income taxes. Under section 6501(c)(4), before the 3-

year period of limitations has expired, respondent's

representatives and a taxpayer may consent in writing to the

assessment of tax after the expiration of the 3-year period. The

tax may then be assessed at any time before the new expiration

date.

Petitioners and respondent's representative signed the Form

872 on December 12, 1985, agreeing to extend the period of

limitation applicable to petitioners' 1982 Federal income tax to

December 31, 1986. Sec. 6501(c)(4).

Petitioners allege that they did not personally sign the

Form 872 and that someone in respondent's office forged their

signatures.
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Petitioners herein have completely failed to satisfy their

burden to prove that the signatures on the Form 872 constitute

forgeries. Rule 142(a).

The handwriting reflected by petitioners' signatures on

their 1982, 1983, and 1984 joint Federal income tax returns

appears to be identical to the handwriting reflected by

petitioners' signatures on the Form 872, and no credible evidence

indicates to the contrary.

In this case, the evidence is clear that the period of

limitation to assess tax for 1982 was properly extended to

December 31, 1986, and that respondent, on September 9, 1986,

timely mailed the notice of deficiency regarding petitioners'

1982 Federal income tax.

In accordance with our prior decision and the decision of

the Court of Appeals for the Ninth Circuit, we conclude that

respondent's notice of deficiency for 1982 was issued within the

prescribed statutory period and that petitioners are liable for

the Federal income tax deficiency and additions to tax for 1982

as previously determined by this Court in Bybee v. Commissioner,

supra.

Decision will be entered

for respondent.