T.C. Memo. 1997-465
UNITED STATES TAX COURT
LONE STAR LIFE INSURANCE COMPANY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 14781-96, 5898-97. Filed October 14, 1997.
Eleftherios Peter Baker, for petitioner.
Avery Cousins III and Anthony S. Gasaway, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: The case assigned
docket No. 14781-96 is before the Court on respondent's Motion
for Partial Summary Judgment and petitioner's Cross-Motion for
Summary Judgment. The issue to be decided is whether the period
of limitations expired prior to the issuance of the notice of
deficiency.
The case assigned docket No. 5898-97 is before the Court on
petitioner's Motion to Dismiss for Lack of Jurisdiction on the
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ground that the notice of deficiency underlying the petition
constitutes an improper second notice of deficiency under section
6212(c).1
Background2
During the taxable years 1988 through 1991, Lone Star Life
Insurance Co. was a wholly owned subsidiary of Hibiscus Life
Insurance Co. (Hibiscus). Hibiscus timely filed consolidated
Federal income tax returns, Forms 1120L, pursuant to section 1501
for the taxable years 1988, 1989, 1990, and 1991 on September 14,
1989, September 17, 1990, September 16, 1991, and September 14,
1992, respectively.3
During the years in issue, Hibiscus and petitioner shared
common corporate officers as well as the same mailing address.
In particular, Jerry Marshall served as controller for Hibiscus
and vice president and controller for petitioner, while Gary
Powers served as treasurer for Hibiscus and vice president
(finance and treasurer) for petitioner.
Revenue Agent Anita Kate Barrett conducted an examination of
Hibiscus' consolidated tax returns for the taxable years 1988
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended. Rule references are to the
Tax Court Rules of Practice and Procedure.
2
The following is a summary of the relevant facts that do
not appear to be in dispute; they are stated solely for purposes
of deciding the pending motion and are not findings of fact for
these cases.
3
During the years in issue, petitioner was Hibiscus' sole
subsidiary.
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through 1991 to determine whether it was appropriate to include
petitioner within the Hibiscus consolidated group. Hibiscus and
petitioner have consistently argued throughout the examination
period and in these proceedings that petitioner was properly
included in the Hibiscus consolidated group during the years in
issue.
Forms 872
In February 1992, during the course of the examination,
Revenue Agent Barrett requested that Hibiscus and petitioner
execute separate Forms 872, Consent to Extend the Time to Assess
Tax, for the taxable year 1988. However, petitioner's
representatives refused to execute a separate Form 872 out of
concern that respondent might attempt to use the document as
evidence that petitioner should not be included in the Hibiscus
consolidated group. Instead, Hibiscus' representatives executed
a series of Forms 872 that served to extend the period of
assessment for the years in issue to December 31, 1996. Each of
the Forms 872 in question identifies the taxpayer as "Hibiscus
Life Insurance Co. and Subsidiary". The following schedule shows
the taxable year, the date executed, and the expiration date for
each of the Forms 872 executed on behalf of Hibiscus:
Year Date Executed Expiration Date
1988 1/27/92 9/30/93
1988-89 7/1/93 6/30/94
1988-90 11/11/93 12/31/94
1988-90 11/1/94 12/31/95
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1988-91 5/19/95 6/30/96
1988-91 1/22/96 12/31/96
Forms 2848
On April 12, 1993, Gary Powers executed Form 2848, Power of
Attorney and Declaration of Representative, identifying the
taxpayer as "Hibiscus Life Insurance Co. & Subsidiary" and
appointing David L. Veeder and John K. Cassil as Hibiscus'
attorneys in fact for the taxable years 1989 and 1990. On July
20, 1993, Gary Powers executed separate Forms 2848 for Hibiscus
and petitioner appointing Messrs. Veeder and Cassil as Hibiscus'
and petitioner's attorneys in fact for the taxable year 1991. On
September 20, 1993, Gary Powers executed Form 2848, identifying
the taxpayer as "Hibiscus Life Insurance Co. & Subsidiary",
appointing Messrs. Veeder and Cassil as Hibiscus' attorneys in
fact for the taxable year 1988.4
30-Day Letters
On April 12, 1993, the District Director issued separate 30-
day letters to Hibiscus and petitioner (along with separate
revenue agent reports (RAR's)) proposing adjustments to their
respective tax liabilities for 1988, 1989, and 1990 on the ground
that Hibiscus and petitioner were not entitled to file
4
Gary Powers executed the Forms 872 that were executed on
Jan. 27, 1992, and July 1, 1993, and David L. Veeder executed the
remainder. Gary Powers testified at the hearing of this matter
that in executing the Forms 872, he intended to extend the period
of limitations for the Hibiscus consolidated group.
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consolidated tax returns for the years 1988 through 1990. On or
about the same date, the District Director issued separate 30-day
letters and RAR's to Hibiscus and petitioner proposing similar
adjustments to their respective tax liabilities for 1991. The
RAR's included computations reflecting each entity's corrected
taxable income for each of the years in issue computed on a
separate tax return basis. In particular, respondent proposed to
determine overpayments with respect to Hibiscus' separate tax
liabilities for 1988 through 1991 and deficiencies with respect
to petitioner's separate tax liabilities for the same periods.
Hibiscus and petitioner filed a joint administrative protest with
respect to the proposed adjustments.
First Notice of Deficiency
On April 11, 1996, respondent issued a notice of deficiency
to petitioner determining deficiencies in its Federal income
taxes for the years and in the amounts as follows:
Year Deficiency
1988 $397,397
1989 2,941,341
1990 4,591,998
1991 5,658,976
The notice of deficiency includes an explanation of adjustments
which states in pertinent part:
It is determined that Hibiscus Life Insurance
Company does not qualify as an insurance company under
I.R.C. sec. 816 because not more than half of its
business during the years in question was the issuing
of insurance or annuity contracts or the reinsuring of
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risks underwritten by insurance companies.
Accordingly, Lone Star Life Insurance Company and
Hibiscus Life Insurance Company may not file
consolidated returns.
It is determined that reinsurance agreements
between Hibiscus Life Insurance Company and Lone Star
Life Insurance Company have significant tax avoidance
effect. This effect is eliminated by disallowing
Hibiscus's reserves associated with the reinsurance
agreements pursuant to I.R.C. sec. 845. As a result of
the disallowance Hibiscus has no reserves and fails to
qualify as an insurance company under I.R.C. sec. 816.
Accordingly, Lone Star Life Insurance Company and
Hibiscus Life Insurance Company may not file
consolidated returns.
Prior to April 18, 1996, Hibiscus received constructive and
actual notice of the notice of deficiency issued to petitioner.
Petitioner filed a timely petition for redetermination with
the Court contesting the notice of deficiency.5 The petition
includes an allegation that the notice of deficiency was issued
to petitioner after the expiration of the period of limitations.
Respondent filed an answer to the petition denying that the
period of limitations had expired in this case by virtue of the
Forms 872 that Revenue Agent Barrett obtained during the
examination. Petitioner in turn filed a reply to respondent's
answer asserting that, as a consequence of respondent's direct
dealing with petitioner during the examination process, the Forms
872 executed by Hibiscus were ineffective to extend the period of
limitations applicable to petitioner. As indicated, the parties'
5
At the time the petition was filed, petitioner maintained
its principal place of business at Dallas, Texas.
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dispute respecting the applicability of the period of limitations
is the subject of the parties' cross-motions for summary judgment
filed in docket No. 14781-96.
Second Notice of Deficiency
By letter dated December 13, 1996, respondent notified
Hibiscus that respondent would deal directly with petitioner
respecting the latter's tax liabilities for the years 1988, 1989,
1990, and 1991. In addition, on December 30, 1996, respondent
issued a further notice of deficiency to petitioner determining
deficiencies in petitioner's Federal income taxes for the years
and in the amounts as follows:
Year Deficiency
1989 $2,932,321
1990 4,591,187
1991 5,658,791
Petitioner filed a timely petition for redetermination
(assigned docket No. 5898-97) with respect to the second notice
of deficiency. Shortly thereafter, however, petitioner filed a
motion to dismiss for lack of jurisdiction asserting that the
December 30, 1996, notice of deficiency constitutes an improper
second notice under section 6212(c). Respondent filed a response
to petitioner's motion to dismiss stating that the December 30,
1996, notice of deficiency was issued as a protective measure out
of concern that the Court might hold the April 11, 1996, notice
of deficiency to be invalid on the basis of respondent's failure
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to provide Hibiscus with advance, formal notice that respondent
had elected to treat petitioner as having separate filing
status.6
The parties' motions were called for hearing at the Court's
motions session in Washington, D.C. Counsel for both parties
appeared at the hearing and presented argument with respect to
the pending motions. Subsequent to the hearing, petitioner filed
a further written statement with the Court, to which respondent
filed a response.
Discussion
1. Period of Limitations
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. Florida Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be
granted with respect to all or any part of the legal issues in
controversy "if the pleadings, answers to interrogatories,
depositions, admissions, and any other acceptable materials,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that a decision may be
rendered as a matter of law." Rule 121(b); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);
6
Respondent cites INI, Inc. v. Commissioner, T.C. Memo.
1995-112, affd. without published opinion 107 F.3d 27 (11th Cir.
1997), as the cause for concern on this point.
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Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving
party bears the burden of proving that there is no genuine issue
of material fact, and factual inferences will be read in a manner
most favorable to the party opposing summary judgment. Dahlstrom
v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.
Commissioner, 79 T.C. 340, 344 (1982).
Section 6501(a) sets forth the general rule that an income
tax must be assessed within 3 years after the tax return for the
particular year is filed. Mecom v. Commissioner, 101 T.C. 374,
381 (1993), affd. without published opinion 40 F.3d 385 (5th Cir.
1994). However, section 6501(c)(4) provides that the taxpayer
and the Commissioner may consent in writing to extend the normal
3-year period of limitations on assessment and that the tax may
be assessed anytime prior to the expiration of the period agreed
upon.
The bar of the period of limitations on assessment is an
affirmative defense, and the party raising it is required to
specifically plead the bar and to carry the ultimate burden of
persuasion. Rule 142(a); Adler v. Commissioner, 85 T.C. 535, 540
(1985). A taxpayer pleading the bar of the statute of
limitations may establish a prima facie case by showing that the
statutory notice was mailed beyond the normal 3-year period. The
burden of going forward then shifts to the Commissioner to show
that the bar of the statute of limitations is not applicable.
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Adler v. Commissioner, supra at 540. The Commissioner's burden
may be satisfied by the production of a written consent to extend
the period of limitations that is valid on its face. Concrete
Engg. Co. v. Commissioner, 58 F.2d 566, 568 (8th Cir. 1932),
affg. 19 B.T.A. 212 (1930); Bridges v. Commissioner, T.C. Memo.
1983-763. Upon such a showing, the burden of going forward with
the evidence then shifts back to the taxpayer to show that the
written consent is invalid or otherwise not binding upon the
taxpayer. Adler v. Commissioner, supra at 540, and cases cited
therein.
As previously discussed, petitioner properly raised the bar
of the period of limitations for each of the years 1988 through
1991 in its petition. Respondent in turn relies upon the Forms
872 executed on behalf of Hibiscus as evidence that the bar of
the period of limitations is not applicable. Petitioner counters
that the Forms 872 executed on behalf of Hibiscus after April 12,
1993, are not effective to extend the period of limitations with
respect to petitioner's tax liabilities on the ground that
respondent's conduct during the examination (and particularly the
issuance of separate 30-day letters to Hibiscus and petitioner)
terminated the agency relationship between Hibiscus and
petitioner pursuant to the final sentence of section 1.1502-
77(a), Income Tax Regs.
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Because there is no dispute as to the material facts
respecting the question of the applicability of the period of
limitations, the issue is ripe for summary adjudication.
Section 1501, which grants the authority for affiliated
corporations to file consolidated income tax returns, provides
that, upon filing a consolidated return, the members of the
consolidated group consent to all of the consolidated return
regulations prescribed under section 1502. Section 1502 provides
that the Secretary shall prescribe such regulations as may be
deemed necessary so that the tax liability of an affiliated group
may be returned, determined, computed, assessed, collected, and
adjusted in such a manner as clearly to reflect the income tax
liability.
Pursuant to the authority granted in section 1502, the
Secretary promulgated section 1.1502-77(a), Income Tax Regs.,
which provides in pertinent part:
Common parent agent for subsidiaries.--(a) Scope of
agency of common parent corporation. The common
parent, for all purposes * * * [other than exceptions
not applicable here], shall be the sole agent for each
subsidiary in the group, duly authorized to act in its
own name in all matters relating to the tax liability
for the consolidated return year. Except as provided
in the preceding sentence, no subsidiary shall have
authority to act for or to represent itself in any such
matter. * * *; the common parent in its name will give
waivers, give bonds, and execute closing agreements,
offers in compromise, and all other documents, and any
waiver or bond so given, or agreement, offer in
compromise, or any other document so executed, shall be
considered as having also been given or executed by
each such subsidiary. * * * Notwithstanding the
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provisions of this paragraph, the district director
may, upon notifying the common parent, deal directly
with any member of the group in respect of its
liability, in which event such member shall have full
authority to act for itself. [Emphasis added.]
Section 1.1502-77(c), Income Tax Regs., provides:
(c) Effect of waiver given by common parent. Unless
the district director agrees to the contrary, an agreement
entered into by the common parent extending the time within
which an assessment may be made or levy or proceeding in
court begun in respect of the tax for a consolidated return
year shall be applicable--
(1) To each corporation which was a member of the group
during any part of such taxable year, and
(2) To each corporation the income of which was
included in the consolidated return for such taxable year,
notwithstanding that the tax liability of any such
corporation is subsequently computed on the basis of a
separate return under the provisions of sec. 1.1502-75.
In sum, the common parent of an affiliated group of corporations
filing a consolidated return generally is treated as the sole
agent for its subsidiaries and may execute a consent to extend
the period of limitations on behalf of the consolidated group.
However, a subsidiary shall have full authority to act for itself
where the Commissioner notifies the common parent that the
Commissioner will deal directly with the subsidiary in respect of
its tax liability. See Craigie, Inc. v. Commissioner, 84 T.C.
466, 474-475 (1985).
The parties disagree whether the issuance of separate 30-day
letters and RAR's to Hibiscus and petitioner during the
examination stage of the case constitutes direct dealing between
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respondent and petitioner, and notice of the same to Hibiscus,
within the meaning of the final sentence of section 1.1502-77(a),
Income Tax Regs. Respondent contends in the alternative that,
regardless of the applicability of section 1.1502-77(a), Income
Tax Regs., the Court should conclude that the period of
limitations did not expire in this case on the grounds that:
(1) The disputed Forms 872 should be enforced to the extent they
reflect the parties' mutual assent to extend the period of
limitations; and (2) petitioner subsequently ratified the Forms
872 executed on behalf of Hibiscus.
Relying on cases such as Barbados #7 Ltd. v. Commissioner,
92 T.C. 804 (1989); Halper v. Commissioner, T.C. Memo. 1997-58;
and Malone & Hyde, Inc. v. Commissioner, T.C. Memo. 1992-661,
petitioner counters that respondent's reliance on the parties'
mutual assent and/or the doctrine of ratification is misplaced.
Petitioner, in its written statement filed subsequent to the
hearing herein, states:
Respondent's arguments as to mutual assent and
ratification are based upon the intent of the parties.
That is, respondent asserts that the consents were
intended to extend the period of limitations for the
separate tax liabilities of both members of the
Hibiscus consolidated group, that Hibiscus' authority
was not disavowed by petitioner, and that the actions
of Hibiscus and petitioner taken upon the assumption
that the necessary authority existed amount to
ratification of the consents. However, the issue
presented by the instant motions is not one of intent,
but instead is whether Hibiscus at the time of its
execution of the consents was vested with the authority
to do so. Petitioner submits that as a result of
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respondent's decision to deal separately with
petitioner, and his notification to Hibiscus of same,
Hibiscus lacked the requisite authority to execute the
consents and that respondent is charged with knowledge
of that lack of authority. Accordingly, while the
elements relied upon by respondent may well be of
significance in another context, 'neither intent nor
failure to disavow nor ratification can create a power
that by law does not and cannot exist.' Malone & Hyde,
Inc. v. Commissioner, T.C. Memo. 1992-661, 64 TCM 1309
at 1316.
In sum, petitioner contends that respondent's purported direct
dealing with petitioner within the meaning of the last sentence
of section 1.1502-77(a), Income Tax Regs., precluded Hibiscus
from continuing to act as agent for petitioner in any respect.
We disagree.
The flaw in petitioner's position, and the factor that
serves to distinguish the present case from the cases relied upon
by petitioner, is petitioner's erroneous assumption that Hibiscus
(and its agents) lacked the legal capacity to act as petitioner's
agent. We return to the final sentence of section 1.1502-77(a),
Income Tax Regs., which provides: "Notwithstanding the
provisions of this paragraph, the district director may, upon
notifying the common parent, deal directly with any member of the
group in respect of its liability, in which event such member
shall have full authority to act for itself." (Emphasis added.)
Even assuming for the sake of argument that Hibiscus' authority
to act as petitioner's agent was terminated in April 1993
pursuant to this provision, we see no basis for interpreting the
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regulation (and particularly the language quoted above) as a
legal bar to the reinstatement of an agency relationship between
Hibiscus and petitioner. In other words, while the final
sentence of section 1.1502-77(a), Income Tax Regs., provides that
a subsidiary member of a consolidated group shall have full
authority to act for itself, the provision does not preclude a
subsidiary from allowing its parent to continue to act as its
agent.
Consistent with the foregoing, it follows that the cases
that petitioner relies upon, cases in which the ostensible agent
lacked the legal capacity to continue to act as an agent, are
inapposite. See Barbados #7 Ltd. v. Commissioner, supra
(TMP/agent's authority terminated upon bankruptcy); Halper v.
Commissioner, supra (agent's authority terminated as consequence
of principal's mental incapacity); Malone & Hyde, Inc. v.
Commissioner, supra (agent's authority terminated upon merger of
corporation/principal with another corporation).
We are satisfied that the undisputed facts demonstrate that
the consents in dispute are valid and binding on petitioner based
upon the theories of mutual assent or ratification. Consistent
with Gary Powers' testimony on the point, petitioner does not
dispute that the consents were executed with the intent of
extending the period of limitations for the Hibiscus consolidated
group. Moreover, Gary Powers' dual role as treasurer for
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Hibiscus and vice president (finance and treasurer) for
petitioner,7 and the prominent role that he played in executing
both consents and appointing attorneys in fact to act for the
Hibiscus consolidated group during the period in question,
provide ample support for the conclusion that petitioner ratified
the consents executed by Hibiscus.8 See Mishawaka Properties Co.
v. Commissioner, 100 T.C. 353, 365-367 (1993) (validity of a
petition for readjustment filed by a partner other than the tax
matters partner sustained based upon principle of implied
ratification); Kraasch v. Commissioner, 70 T.C. 623, 628 (1978)
(taxpayers ratified accountant's act of filing petition on their
behalf).
7
As a corporate officer, Gary Powers had apparent
authority to act as agent for both Hibiscus and petitioner. See,
e.g., Bugaboo Timber Co. v. Commissioner, 101 T.C. 474, 486
(1993).
8
Significantly, during April 1993, the same time that
respondent had issued separate 30-day letters to Hibiscus and
petitioner, and later in July and September 1993, Gary Powers
executed a series of Forms 2848 appointing Messrs. Veeder and
Cassil as attorneys in fact for "Hibiscus Co. and Subsidiary" for
the taxable years 1988, 1989, and 1990, and separate powers of
attorney appointing Messrs. Veeder and Cassil as attorneys in
fact for Hibiscus and petitioner for the taxable year 1991. Gary
Powers was aware that David Veeder executed further consents to
extend the period of limitations on behalf of "Hibiscus Co. and
Subsidiary." Considering all of the facts and circumstances,
Gary Powers' silence respecting his authority, as well as that of
David Veeder, to act as agent for petitioner and to execute
consents on behalf of petitioner serves as petitioner's
ratification of Gary Powers' execution of the powers of attorney
as well as the consents executed on its behalf.
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In sum, we hold that the Forms 872 that Hibiscus executed
were effective to extend the period of limitations on behalf of
petitioner. Consequently, we will grant respondent's Motion for
Partial Summary Judgment and deny petitioner's Cross-Motion for
Summary Judgment filed in docket No. 14781-96.
2. Petitioner's Motion To Dismiss for Lack of Jurisdiction
Filed in Docket No. 5898-97
The remaining question to be decided is whether the December
30, 1996, notice of deficiency that is the basis for the petition
assigned docket No. 5898-97 is an invalid second notice of
deficiency under section 6212(c). Resolution of this issue turns
largely upon the question of the validity of the April 11, 1996,
notice of deficiency that is the subject of the petition assigned
docket No. 14781-96. As previously mentioned, respondent issued
the notice of deficiency dated December 30, 1996, out of concern
that the Court might find the April 11, 1996, notice of
deficiency to be invalid based upon statements contained in INI,
Inc. v. Commissioner, T.C. Memo. 1995-112, affd. without
published opinion 107 F.3d 27 (11th Cir. 1997), to which we now
turn.
In INI, Inc. v. Commissioner, supra, the Commissioner
adopted inconsistent alternative positions by issuing one notice
of deficiency to the common parent of a consolidated group of
corporations and a second notice of deficiency to a subsidiary
corporation based on separate filing status. Separate petitions
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for redetermination were filed with the Court with respect to
each notice. However, INI, Inc. (INI), the subsidiary
corporation, subsequently challenged the validity of the notice
of deficiency that respondent had issued to INI on the ground
that the separate notice was issued in violation of section
1.1502-77(a), Income Tax Regs.
Contrary to INI's position, the Court sustained the validity
of the notice of deficiency. In particular, although recognizing
that a common parent of a consolidated group of corporations
normally serves as agent for its subsidiaries, the Court observed
that a copy of the notice of deficiency issued to INI was
contemporaneously furnished to the common parent corporation.
Under the circumstances, the Court concluded that the notice of
deficiency was validly issued pursuant to the consolidated return
regulations on the ground that it served as notice to the common
parent corporation that respondent intended to deal directly with
INI pursuant to the final sentence of section 1.1502-77(a),
Income Tax Regs.
Applying similar reasoning in the present case, we conclude
that the April 11, 1996, notice of deficiency issued to
petitioner is valid. Of course, the facts in the present case
can be distinguished from those of INI, Inc. v. Commissioner,
supra, insofar as respondent did not directly furnish Hibiscus
with a copy of the April 11, 1996, notice of deficiency.
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However, considering that Hibiscus and petitioner shared
corporate officers and the same address, we are satisfied that
delivery of the April 11, 1996, notice of deficiency to
petitioner also served to provide Hibiscus with timely notice of
respondent's determination to deal directly with petitioner in
respect of its tax liabilities for the years in issue within the
meaning of section 1.1502-77(a), Income Tax Regs.9 Consequently,
we conclude that the April 11, 1996, notice of deficiency is
valid. INI, Inc. v. Commissioner, supra.
Section 6212(c) provides that, with exceptions not
applicable here, if the Secretary has mailed to the taxpayer a
notice of deficiency, and the taxpayer files a timely petition
with the Tax Court, the Secretary shall have no right to issue a
further notice of deficiency to the taxpayer for the same taxable
year. See McCue v. Commissioner, 1 T.C. 986, 987-988 (1943).
Consistent with our holding that the April 11, 1996, notice of
deficiency is valid, and considering petitioner's timely petition
for redetermination assigned docket No. 14781-96, it follows that
the December 30, 1996 notice of deficiency is an invalid second
notice of deficiency within the meaning of section 6212(c).
McCue v. Commissioner, supra. Accordingly, we will grant
petitioner's Motion to Dismiss for Lack of Jurisdiction filed in
9
The parties agree that Hibiscus had actual or
constructive notice of the Apr. 11, 1996, notice of deficiency by
Apr. 18, 1996.
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docket No. 5898-97, and we will dismiss that docket for lack of
jurisdiction on the ground that the underlying notice of
deficiency is invalid.
To reflect the foregoing,
An order denying petitioner's Cross-
Motion for Summary Judgment and granting
respondent's Motion for Partial Summary
Judgment will be issued in docket No.
14781-96, and an order granting
petitioner's Motion to Dismiss for Lack
of Jurisdiction will be entered in
docket No. 5898-97.