concurring: While I am in complete accord with the majority opinion, I wish to add the following comments.
The Du Mais opinion was apparently based on the premise that in the case of a joint return the liability of the spouses in the event of a deficiency can only be established by issuing to them a j oint notice under the provisions of section 6212(b) (2). This premise, as I view it, did not give proper consideration to three principles of law:
First, even though a husband and wife may file a joint return, they remain separate and distinct taxpayers. Van Vleck v. Commissioner, 80 F. 2d 217 (C.A. 2, 1935), affirming 31 B.T.A. 433 (1934). The essential characteristic of joint and several liability is that a creditor may, at his option, sue each party to such liability separately, or all parties together. Sessions v. Johnson, 95 U.S. 596 (1877).
Second, other sections of the Internal Revenue Code, i.e., secs. 6871 (a) and 6213(d), permit the assessment of deficiencies under certain specified circumstances without the mailing of a notice of deficiency. Take this example. A husband and wife file a j oint income tax return. An examination is made of the return and it is determined that a deficiency exists. Before a deficiency notice can be sent, the husband alone is placed in bankruptcy. If it is concluded that the husband is a separate taxpayer for the purpose of section 6871(a), the Commissioner is permitted to make an immediate assessment against the husband, and the obvious purpose of the section is fulfilled. H. Rept, No. 1, 69th Cong. (1925), 1939-1 C.B. 355. If, however, it is concluded that the filing of a joint return creates not two separate taxpayers, but only one, then the Commissioner cannot avail himself of section 6871, a result which is attributable to the fact that the taxpayer entity, consisting of husband and wife, is not itself in bankruptcy. It is evident that adoption of the latter conclusion would not only place an unnecessary limitation on section 6871 but would seriously hinder the purpose for which the section was enacted. The same thing would be true with respect to section 6213(d). See United States v. Price, 361 U.S. 304 (1960).
Third, section 6212(b) (2) is not an independent section that operates in a vacuum, but rather a component part of section 6212, and its applicability is subject to the same prerequisites as section 6212. Section 6212 (b) (2) presupposes the existence of a deficiency, because, if there is no deficiency, a notice of deficiency cannot be mailed and, if a notice of deficiency cannot be mailed, the manner of addressing the notice becomes completely irrelevant.
The application of these principles of law to the facts of Du Mais plainly demonstrates the incorrect conclusion reached in that case. In Du Mais, the deficiencies were assessed against the husband, who was a separate taxpayer, pursuant to the waiver provisions of section 6213(d). Since the wife, who was also a separate taxpayer, would not execute a similar Form 870 waiver, it became necessary to issue a notice of deficiency to her. However, although the wife was entitled to receive a notice of deficiency in accordance with section 6212(a) since a deficiency still existed with respect to her, the husband was not entitled to a notice of deficiency for two reasons: (1) He had executed a Form 870 and had thereby waived the restrictions on assessment and collection of the deficiencies, including the right to receive a notice of deficiency; and (2) after the assessment, no deficiency, as defined by section 6211, existed against the husband and a notice of deficiency to him purporting to determine such a deficiency would not be authorized by section 6212(a). See Stanley A. Anderson, 11 T.C. 841 (1948). Since the husband and wife were not both entitled to the notice of deficiency authorized by section 6212(a), the provisions of section 6212(b) (2) were inapplicable. Consequently, it seems clear to me that the Commissioner’s issuance of a separate notice of deficiency to Natalie Du Mais was not only valid, but it was the only form of action compatible with the deficiency and assessment provisions of the Internal Revenue Code.
For the reasons articulated so effectively in the majority opinion and for the added reasons mentioned here, I believe the Du Mais decision was erroneous and that the rationale of Kisting is sound. The result reached here is right.