                  T.C. Summary Opinion 2011-115



                      UNITED STATES TAX COURT



         JUAN COLON AND NATALY VELAZQUEZ, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 27169-09S.              Filed September 28, 2011.



     Frank M. Schuler and Michael L. Boman, for petitioner Juan

Colon.

     Jessica C. Piedra, for petitioner Nataly Velazquez.

     Charles J. Graves, for respondent.



     WELLS, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the


     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, and Rule references
                                                   (continued...)
                               - 2 -

decision to be entered is not reviewable by any other court, and

this opinion shall not be treated as precedent for any other

case.

     This case is before the Court on petitioner Juan Colon’s

motion for partial summary judgment pursuant to Rule 121.     The

sole issue we must decide here is whether respondent’s issuance

of a joint notice of deficiency bars him from determining that

petitioners are not married.

                            Background

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of facts are incorporated in this

opinion by reference and are found accordingly.     At the time they

filed their petition, petitioners Juan Colon (Mr. Colon) and

Nataly Velazquez (Ms. Velazquez) were residents of Kansas.

     Mr. Colon timely filed a Form 1040, U.S. Individual Income

Tax Return, for his 2008 tax year.     On February 16, 2009, Mr.

Colon was issued a tax refund of $971.     On May 18, 2009, Mr.

Colon and Ms. Velazquez timely filed a Form 1040X, Amended U.S.

Individual Income Tax Return, for their 2008 tax year.     On that

Form 1040X, Mr. Colon and Ms. Velazquez claimed the filing status

“married filing jointly”.




     1
      (...continued)
are to the Tax Court Rules of Practice and Procedure.
                                - 3 -

     Respondent processed the Form 1040X and timely mailed a

joint notice of deficiency addressed to both Mr. Colon and Ms.

Velazquez on August 18, 2009.    The notice of deficiency

determined that Mr. Colon and Ms. Velazquez were not eligible to

file as married filing jointly because they were not married at

the close of the tax year.   Respondent therefore determined their

taxes using the rates that apply to single individuals.

     Mr. Colon filed another Form 1040X, which respondent

received on August 28, 2009.    Respondent did not process that

return.

     Petitioners timely filed a joint petition with this Court.

                             Discussion

     Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Full or partial summary judgment may be granted only if no

genuine issue exists as to any material fact and the issues

presented by the motion may be decided as a matter of law.    See

Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).

     Mr. Colon has moved for partial summary judgment on the

issue of whether he is entitled to file a joint return with Ms.

Velazquez.   Mr. Colon contends that, because respondent issued a

joint notice of deficiency to him and Ms. Velazquez, respondent

should be barred from determining, in that joint notice of
                               - 4 -

deficiency, that Mr. Colon is not married.    Respondent concedes

that separate notices of deficiency should have been issued to

Mr. Colon and Ms. Velazquez.   However, respondent contends that

Mr. Colon’s argument that respondent should be bound by his

issuance of a joint notice of deficiency is contrary to the

intent of sections 6212 and 6213.

     Partial summary judgment on this issue is appropriate

because the relevant facts are not in dispute and the parties’

disagreement is a matter of law.

     Section 6013(a) provides that a “husband and wife may make a

single return jointly of income taxes”.    We have held that

section 6013 limits the benefits of joint filing to married

couples.   See Lee v. Commissioner, 64 T.C. 552, 560 (1975), affd.

550 F.2d 1201 (9th Cir. 1977); Von Tersch v. Commissioner, 47

T.C. 415, 420-421 (1967).   The Commissioner has the right and the

obligation to determine whether a man and woman filing a joint

return are legally married.    Untermann v. Commissioner, 38 T.C.

93, 95 (1962); Gersten v. Commissioner, 28 T.C. 756, 770 (1957),

affd. in part and remanded in part on other grounds 267 F.2d 195

(9th Cir. 1959).   If the Commissioner properly determines that

such individuals are not legally married, then those individuals

are not entitled to file a joint return.     Lee v. Commissioner,

supra at 560; Von Tersch v. Commissioner, supra at 420-421;

Gersten v. Commissioner, supra at 771.     As part of the deficiency
                                 - 5 -

proceeding, a taxpayer is entitled to challenge the

Commissioner’s determination regarding the appropriate filing

status for the taxpayer.   Millsap v. Commissioner, 91 T.C. 926,

936 (1988).   “The filing status election is no different from any

other adjustment that goes into the determination of a deficiency

under section 6211 et seq.”     Id.

     Section 6212(a) provides that if the Commissioner determines

a deficiency in income tax, “he is authorized to send notice of

such deficiency to the taxpayer by certified mail or registered

mail.”   The notice of deficiency “shall be sufficient” if mailed

to the taxpayer at his last known address, unless the

Commissioner has been properly notified that a fiduciary has been

substituted for the taxpayer.    Sec. 6212(b)(1).   In the case of a

joint income tax return, “such notice of deficiency may be a

single joint notice” unless the Commissioner has been notified

that the spouses have established separate residences.    Sec.

6212(b)(2).   The provisions of section 6212 were designed to

afford a taxpayer actual notice of the Commissioner’s

determination and an opportunity to litigate the validity of that

determination in this Court.     Rochelle v. Commissioner, 116 T.C.

356, 360 (2001), affd. 293 F.3d 740 (5th Cir. 2002); McKay v.

Commissioner, 89 T.C. 1063, 1067 (1987), affd. 886 F.2d 1237 (9th

Cir. 1989); Mulvania v. Commissioner, 81 T.C. 65 (1983).     We

therefore repeatedly have held that notices of deficiency are
                                - 6 -

valid despite minor errors, as long as the taxpayer receives

actual notice of the Commissioner’s determination in time to file

a petition with this Court.   See, e.g., Rochelle v. Commissioner,

supra at 360; Frieling v. Commissioner, 81 T.C. 42, 53 (1983);

see also Scheidt v. Commissioner, 967 F.2d 1448, 1450-1451 (10th

Cir. 1992), affg. T.C. Memo. 1985-235.

     Although that line of cases does not directly address Mr.

Colon’s contention, it is instructive insofar as it shows that

the primary purpose of the notice of deficiency is to provide the

taxpayer with timely notice of the Commissioner’s determination.

Section 7522 provides further elaboration regarding the required

content of the notice of deficiency.    Section 7522 requires that

the notice “describe the basis for, and identify the amounts (if

any) of, the tax due, interest, additional amounts, additions to

the tax, and assessable penalties included in such notice.”    Sec.

7522(a).   According to section 7522, the notice of deficiency

must provide the taxpayer with notice of the Commissioner’s basis

for determining that deficiency.    Cadwell v. Commissioner, 136

T.C. 38, 49 (2011); Shea v. Commissioner, 112 T.C. 183, 196

(1999).    The notice must be sufficient to permit the taxpayer to

comply with the requirement of Rule 34(b) that the taxpayer make

clear and concise assignments of every error alleged against the
                                   - 7 -

Commissioner.2      Cadwell v. Commissioner, supra at 49-50; Shea v.

Commissioner, supra at 196-197.       However, even an inadequate

description of the Commissioner’s basis in the notice of

deficiency will not invalidate the notice.       Sec. 7522(a).

       We decline to accept Mr. Colon’s argument that respondent’s

issuance of a joint notice of deficiency precludes respondent

from determining that petitioners are not married.       Indeed,

respondent is required to make that determination.       See Gersten

v. Commissioner, supra at 770.

       The purpose of the notice of deficiency is to give the

taxpayer notice of the Commissioner’s determination and the basis

of that notice so that the taxpayer may timely challenge the

Commissioner’s determination in this Court.       See Cadwell v.

Commissioner, supra at 49; Rochelle v. Commissioner, supra at

360.       Mr. Colon received actual notice of respondent’s

determination in time to file his petition with this Court.         In


       2
        Rule 34(b) requires that the petition contain:

            (4) Clear and concise assignments of each and every
       error which the petitioner alleges to have been committed by
       the Commissioner in the determination of the deficiency or
       liability. The assignments of error shall include issues in
       respect of which the burden of proof is on the Commissioner.
       Any issue not raised in the assignment of error shall be
       deemed to be conceded. Each assignment of error shall be
       separately lettered.

            (5) Clear and concise lettered statements of the facts
       on which petitioner bases the assignments of error, except
       with respect to those assignments of error as to which the
       burden proof is on the Commissioner.
                                 - 8 -

spite of respondent’s acknowledged error in issuing a joint

notice of deficiency to both Mr. Colon and Ms. Velazquez, the

notice of deficiency nevertheless informed Mr. Colon of the basis

for respondent’s determination.     In his petition, Mr. Colon

specifically assigned error to respondent’s determination that he

was not entitled to file as married filing jointly.       Accordingly,

Mr. Colon was in no way prejudiced by respondent’s error in

issuing a joint notice of deficiency.

     Even in cases where the Commissioner raises a new matter in

his answer to the taxpayer’s petition in this Court, the proper

response is not to preclude the Commissioner from asserting that

new matter.     Rather, it is to place the burden of proof as to

that new matter on the Commissioner.       Rule 142(a); Hurst v.

Commissioner, 124 T.C. 16, 30 (2005); Wayne Bolt & Nut Co. v.

Commissioner, 93 T.C. 500, 507 (1989).       Because the taxpayer’s

filing status is no different from any other adjustment that is

part of the Commissioner’s determination of a deficiency, it

should be treated no differently.3       See Millsap v. Commissioner,

supra at 936.    The burden of proof remains on Mr. Colon because


     3
      Indeed, we have held that where the Commissioner first
asserted in his amended answer that the taxpayer’s filing status
should be changed, the Commissioner bore the burden of proof on
that issue. See Shackelford v. Commissioner, T.C. Memo. 1995-
484. In that case, the Commissioner determined the taxpayer’s
filing status was “married filing separate” rather than “single”.
That case therefore did not raise the issue of whether the
Commissioner was bound by his issuance of a joint notice of
deficiency.
                               - 9 -

the notice of deficiency gave him notice that respondent had

determined that his filing status is “single”.    Respondent’s

answer did not assert any new matter that was not in the notice

of deficiency.

     Mr. Colon directs our attention to several cases that he

contends provide support for his argument that respondent is

precluded from determining that his proper filing status is

“single”.   However, the cases Mr. Colon cites do not support his

contention.   In Schroeder v. Commissioner, T.C. Memo. 1989-110,

the taxpayers failed to file a valid return.    In his notice of

deficiency, the Commissioner elected to determine the couple’s

tax liability using joint rates.   However, in an amendment to his

answer in that case, the Commissioner used separate rates to

determine the couple’s tax liability.    The validity of the

couple’s marriage was not in issue.    We held that the

Commissioner’s initial election in the notice of deficiency to

use joint rates was a binding election.    The instant case is

distinguishable from that case because the issue here is whether

petitioners are legally married, an issue that was not before the

Court in Schroeder.   Respondent has the duty to determine whether

petitioners are legally married, and only legally married couples

are entitled to file joint returns.    See Lee v. Commissioner, 64

T.C. at 560; Gersten v. Commissioner, 28 T.C. at 770.
                              - 10 -

     In Wilson v. Commissioner, 474 F.2d 600 (5th Cir. 1973), the

taxpayer and her late husband failed to file a return and the

Commissioner issued a joint notice of deficiency to the couple.

The taxpayer contended that the joint notice of deficiency was

invalid because, pursuant to section 6212(b)(2), a joint notice

of deficiency was appropriate only where the taxpayers had filed

a joint income tax return.   Because she and her late husband had

filed no return, she argued that the joint notice of deficiency

was defective on its face.   The Court of Appeals rejected the

taxpayer’s argument, holding that the taxpayer’s filing of a

petition with the Tax Court vitiated any objection regarding the

notice of deficiency.   The Court of Appeals stated:   “The filing

of the petition fully acknowledged that the purpose of the

deficiency notice, which is to give the taxpayer notice that a

deficiency has been assessed and give him an opportunity to have

the assessment reviewed by the Tax Court, was accomplished.”     Id.

at 603.   Indeed, the Court of Appeals’ holding in Wilson is

actually unhelpful to Mr. Colon’s contention because it again

underscores that the purpose of the notice of deficiency is to

give the taxpayer notice of the Commissioner’s determination.

     Mr. Colon also contends that this Court is not authorized to

relieve Ms. Velazquez of joint liability because she filed a

joint petition with this Court.   Mr. Colon argues that upon the

filing of a joint petition, we are authorized to enter decisions
                                - 11 -

for separate amounts only if we decide a spouse is entitled to

relief from joint and several liability pursuant to section 6015

or if we decide one spouse is not liable for the fraud penalty.

We disagree.   A taxpayer’s filing status is part of the

Commissioner’s determination that we review.      Taxpayers who are

not married are, by law, not entitled to file jointly.     See Lee

v. Commissioner, supra at 560; Von Tersch v. Commissioner, 47

T.C. at 420-421.   Accordingly, we are required to review

respondent’s determination that petitioners are not legally

married.

     On the basis of the foregoing, we hold that respondent’s

issuance of a joint notice of deficiency to petitioners does not

preclude him from determining that Mr. Colon’s proper filing

status is “single”.   We therefore will deny Mr. Colon’s motion

for partial summary judgment.

     In reaching this holding, we have considered all the

parties’ arguments, and to the extent not addressed herein, we

conclude that they are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                          An appropriate order will

                                     be issued.
