T.C. Memo. 1999-298
UNITED STATES TAX COURT
MICHAEL B. AND DIANA C. WHEELER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15374-98. Filed September 7, 1999.
Diana C. Wheeler, pro se.
James Kutten, for respondent.
MEMORANDUM OPINION
WOLFE, Special Trial Judge: This case is before us on
respondent's motion to dismiss for lack of jurisdiction with
respect to petitioner Diana C. Wheeler (Mrs. Wheeler), to change
the caption, and to strike as to Mrs. Wheeler. Unless otherwise
indicated, all section references are to the Internal Revenue
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Code as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
Respondent contends that this case should be dismissed for
lack of jurisdiction as it relates to Mrs. Wheeler because a
notice of deficiency was not issued to her. For the same reason
respondent urges that the caption of this case be changed by
deleting Mrs. Wheeler's name, and that the reference to Mrs.
Wheeler in paragraph 2 of the amended petition and the entire
second page of the amended petition (on which is set forth
petitioners' arguments in favor of retaining Mrs. Wheeler as a
petitioner) be stricken. Petitioners resided in Cedar Hill,
Missouri, when they filed their petition.
Respondent asserts that petitioner Michael B. Wheeler (Mr.
Wheeler) failed to file Federal income tax returns for the years
1992 through 1996. Respondent further asserts that during the
audit of Mr. Wheeler's 1992 through 1996 years, respondent dealt
with Mrs. Wheeler since she held a power of attorney from her
husband.
On June 10, 1998, respondent issued to Mr. Wheeler, by
certified mail, a notice of deficiency for the years 1992 through
1996. The notice was sent to Mr. Wheeler at P.O. Box 536, Cedar
Hill, MO 63016-0536. On the same day, respondent issued to Mr.
Wheeler, by certified mail, a duplicate notice of deficiency.
The duplicate notice was sent to Mr. Wheeler at 34 El Jer Dr.,
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Cedar Hill, MO 63016 (El Jer address). Respondent contends that
neither duplicate of the notice was issued to Mrs. Wheeler.
Respondent asserts that copies of the statutory notice, issued to
Mr. Wheeler, were sent to Mrs. Wheeler only pursuant to her power
of attorney from her husband. Petitioners claim that the notice
that was sent to the El Jer address was issued to both Mr. and
Mrs. Wheeler.
In general, the jurisdiction of this Court is limited by
section 6213(a) to proceedings commenced by taxpayers who timely
file a petition in response to a notice of deficiency issued to
them under the authority of section 6212. See Monge v.
Commissioner, 93 T.C. 22, 27 (1989); Abeles v. Commissioner, 91
T.C. 1019, 1025 (1988); Guarino v. Commissioner, 67 T.C. 329, 331
(1976); see also Rule 13. Accordingly, when a notice of
deficiency is issued to only one spouse, this Court lacks
jurisdiction over the spouse not named in the notice. See, e.g.,
Abrams v. Commissioner, 814 F.2d 1356, 1357 (9th Cir. 1987)
(cited with approval in Holgate v. Commissioner, 81 AFTR2d 98-
1094, 98-1 USTC par. 50,457 (9th Cir. 1998)) (per curiam); Coe v.
Commissioner, a Memorandum Opinion of this Court dated May 14,
1932.
Both parties introduced into evidence copies of the notice
that was sent to the El Jer address. The copy of the notice
introduced by petitioners lists both Mr. and Mrs. Wheeler's
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names. The copy of the notice placed in evidence by respondent
only lists Mr. Wheeler's name. Respondent asserts that Mrs.
Wheeler's name was not listed on the notice mailed to the El Jer
address and that her name was added sometime after the notice was
mailed. Mrs. Wheeler's name as it appears on the copy of the
notice presented by petitioners does appear to have been added
after the initial text was drafted. Mrs. Wheeler's name on
petitioners' copy is typed in a different font from the rest of
the text. Petitioners do not contest respondent's assertion that
Mrs. Wheeler's name apparently was added after the notice of
deficiency had been prepared. Instead, petitioners claim that
Mrs. Wheeler's name was added by respondent before the notice was
mailed.
Based upon this record, we find that the notice was not
issued to Mrs. Wheeler. Michael Meyering (Mr. Meyering), an
agent in respondent's examination review staff, was assigned to
work on a case regarding Mr. Wheeler for the years 1992 through
1996. Mr. Meyering was not assigned to work on a case regarding
Mrs. Wheeler. Upon completion of the audit, Mr. Meyering
prepared duplicate statutory notices of deficiency in the name of
Mr. Wheeler. Mr. Meyering did not prepare a joint notice for Mr.
and Mrs. Wheeler. A certified mailing list introduced by
respondent verifies that duplicate originals of the notice were
issued to Mr. Wheeler. The certified mailing list does not
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indicate that a notice was issued to Mrs. Wheeler. Mr. Meyering
further testified that according to respondent's procedures he,
rather than another agent, would have been required to make any
changes to the notice. Mr. Meyering also testified that a joint
notice in this case was inappropriate because joint notices are
only issued when taxpayers make an election to file jointly. In
this case, respondent determined that Mr. Wheeler had failed to
file Federal income tax returns for the years 1992 through 1996
and that an election to file jointly was not made. Moreover,
petitioners in a letter attached to their Tax Court petition
state "Diana's name was somehow inadvertently omitted".
For the foregoing reasons, we find that the statutory notice
of deficiency in this case was issued solely to Mr. Wheeler and
was not issued to Mrs. Wheeler. Accordingly, we hold that we do
not have jurisdiction over Mrs. Wheeler. Respondent's motion to
dismiss for lack of jurisdiction with respect to Mrs. Wheeler, to
change caption, and to strike, is granted.
An appropriate order
will be issued.