                        T.C. Memo. 1996-142



                      UNITED STATES TAX COURT



                 JOANNE SOON KIM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5279-94.                Filed March 20, 1996.



     Michael M. Gill, for petitioner.

     Lisa Primavera-Femia, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     SCOTT, Judge:   Respondent determined a deficiency in

petitioner's Federal income tax in the amount of $16,901 and

anaccuracy-related penalty under section 6662(a)1 in the amount

of $3,380 for the calendar year 1989.




     1
        All section references are to the Internal Revenue Code
in effect for the year in issue.
     Some of the issues raised by the pleadings have been

disposed of by agreement of the parties, leaving for decision

whether a valid Consent to Extend the Time to Assess Tax (Form

872) for the year 1989 was executed by or properly on behalf of

petitioner.2

                          FINDINGS OF FACT

     Some of the facts have been stipulated and are found

accordingly.

     Petitioner had a legal residence in Seal Beach, California,

at the time of the filing of her petition in this case.      She

filed a joint Federal income tax return with her then husband,

Charles K. Kim (Mr. Kim), for the taxable year 1989.

     Petitioner is known both as Joanne Kim and Soon Kim.     During

1989, petitioner owned and operated two cafeterias, each called

"Joanne's Cafe".   One cafeteria was located in Irvine,

California, and the other in Long Beach, California.    Petitioner

opened the cafeteria in Long Beach in 1985 and the cafeteria in

Irvine in 1987.    Petitioner was actively involved in the

operation of each of these cafeterias.

     On or about March 26, 1991, respondent began the audit of

petitioner's 1989 Federal income tax return.   Shortly after the

commencement of the audit, petitioner and her husband were

divorced.   Mr. Kim did not reside with petitioner at 640 Taper




     2
        Petitioner conceded at trial the correctness of
respondent's adjustments to her return and her lack of
entitlement to relief under sec. 6013(e) as an innocent spouse.
                              -3 -

Drive, Seal Beach, California, after the divorce.   Petitioner

lived at that address until May 1994.

     On August 17, 1992, petitioner and Mr. Kim signed a Form

2848, Power of Attorney and Declaration of Representative (power

of attorney), in favor of Mr. Dale Zuehls (Mr. Zuehls).    The

power of attorney authorized Mr. Zuehls to perform any and all

acts that petitioner could perform with respect to her income tax

for the taxable years 1988 through 1990, including the authority

to execute any agreements or consents in connection with her tax

liabilities for the years 1988, 1989, and 1990.   Petitioner

signed the form before Mr. Zuehls' name was listed as the

representative, but with the knowledge that she was hiring

someone to represent her before the Internal Revenue Service

(IRS) with respect to her tax matters.   Petitioner was aware at

the time she executed the power of attorney that her tax

liabilities for 1988 and 1989 were being investigated.

     Internal Revenue Agent Jackie Novella (Agent Novella) was

assigned to audit petitioner's and Mr. Kim's Federal income tax

liabilities for the years 1988 and 1989.   Agent Novella dealt

primarily with Mr. Kim and Mr. Zuehls during the examination.

Petitioner did not involve herself in the audit, and she gave any

correspondence to her from the IRS to Mr. Kim unopened.

     On November 17, 1992, Agent Novella sent by certified mail a

Form 872, Consent to Extend the Time to Assess Tax, with respect

to Federal income tax due with respect to petitioner's and Mr.
                                -4 -

Kim's joint return for the year 1989 to petitioner's authorized

representative, Mr. Zuehls.

       On November 23, 1992, Mr. Zuehls sent to Agent Novella by

telephone transmission a copy of the Form 872 bearing what

purported to be the signatures of petitioner and Mr. Kim.    On

November 24, 1992, respondent received by mail the original Form

872.    On November 25, 1992, IRS group manager Ms. Sandra Sturla

(Ms. Sturla) signed the Form 872 consenting to an extension of

time to assess petitioner's tax for the year 1989 on behalf of

respondent.

       At no time prior to the mailing of the notice of deficiency

on December 28, 1993, did petitioner inform Agent Novella that

she contended that the signature on the Form 872 was not genuine

or that she did not consider the Form 872 valid.

       Respondent determined in her notice of deficiency dated

December 28, 1993, that petitioner and Mr. Kim had underreported

income and overstated depreciation on their Schedule C and had

failed to report gain from the sale of business property.

Petitioner contends that the Form 872 does not extend the period

of limitation to assess tax for 1989 because petitioner did not

sign the form.    Respondent's position is that she reasonably

relied on the Form 872 and petitioner's agent, Mr. Zuehls, and,

therefore, the period of limitations for the year 1989 was

properly extended.
                                -5 -

                               OPINION

     Section 6501(a) provides in part that the amount of any

income tax must be assessed against a taxpayer within 3 years of

the filing of the income tax return.     Section 6501(c)(4) provides

for the execution by a taxpayer and the Commissioner of a waiver

of the period of limitations for an agreed-upon time.    A consent

is valid on its face if it identifies the taxpayers, bears their

signatures, identifies the year, and is dated prior to the

expiration of the existing limitations period.    When a taxpayer

pleads the issue of the period of limitations, he makes a prima

facie case by showing that the notice of deficiency was not

mailed within the time provided in section 6501(a).    When the

Commissioner produces a consent to extend the period of

limitations that is valid on its face, the burden is on the

taxpayer to show that the consent is invalid or not applicable to

the year involved.    Adler v. Commissioner, 85 T.C. 535, 540

(1985).

     Petitioner argues that the Form 872 is invalid on its face

because petitioner's signature was not genuine, and, therefore,

the burden of proving the validity of the consent is on

respondent.   We hold, however, that respondent has met her burden

of introducing into evidence a Form 872 that is valid on its

face.   It is not apparent from the face of the Form 872 that

petitioner's signature was not genuine.    Petitioner testified at

trial that the signature on the consent Form 872 was not her

signature.    Apparently, respondent does not question petitioner's
                                -6 -

testimony that the signature was not actually written by

petitioner.    However, respondent does contend, based on her

agent's testimony, that this fact was not apparent to any

representative of the IRS who had occasion to review the Form

872.     Petitioner contends that respondent should have known by

examination of the Form 872 that the signature was not her

signature, and, therefore, the form was invalid on its face.

Agent Novella testified that both she and her supervisor examined

the Form 872 and would have noted any large discrepancies between

the signature on the form and the signature on petitioner's tax

return, but noticed none.    We find this to be credible testimony,

particularly after a review of the signatures on the two

documents.    Therefore, the burden is on petitioner to show that

the Form 872 is invalid.

       Based on the record in this case, we hold that petitioner

has not met her burden of proving that the Form 872 is invalid.

Petitioner has made no showing of who might have signed her name

to the Form 872.    She did not call Mr. Zuehls as a witness but

claims she did not consent to his signing her name to the Form

872.    Clearly she had given Mr. Zuehls the power to consent for

her to an extension of the period of limitations.    The extent of

an agent's authority is a factual question to be decided on the

basis of facts and circumstances shown in the record.    Adams v.

Commissioner, 85 T.C. 359, 369-372 (1985); Kraasch v.

Commissioner, 70 T.C. 623, 627-629 (1978).    We have held that

where a document is signed by the taxpayer's agent in the
                                -7 -

taxpayer's name it is nevertheless valid, if under the facts in

the record, that agent had authority to act on behalf of the

taxpayer with respect to the matter covered by the document.

Kraasch v. Commissioner, supra at 627.    Based on the power of

attorney signed by petitioner, Mr. Zuehls had express authority

to act on behalf of petitioner in consenting to extend the period

of limitations for assessment of tax.    Also, based on this

record, it appears that petitioner had given Mr. Kim authority to

act on her behalf with respect to her income tax matters for

1989.    She testified with respect to receipt of documents from

the IRS addressed to her only, which she sent unopened to Mr.

Kim.    Mr. Kim was not called as a witness in this case.

Petitioner did not question the validity of the Form 872 until

after the mailing of the notice of deficiency.    Her activities as

a whole indicate that she considered that Mr. Kim had the

authority to consent on her behalf to an extension of the period

of limitations for 1989.    Petitioner's intent was that her

husband handle their 1989 income tax matters including, if

needed, extending the period of limitations on assessment of tax

against her, as well as himself.    See Estate of Campbell v.

Commissioner, 56 T.C. 1, 13 (1971).

       Petitioner has not shown who signed her name to the Form

872.    If it was Mr. Zuehls, he had authority under the power of

attorney she signed to do so.    If it was Mr. Kim, he had implied

authority to do so.    Certainly, by failure to question the

validity of the Form 872 for an extended period of time,
                              -8 -

petitioner has in effect accepted it as valid.   Petitioner has

failed to show that the notice of deficiency was untimely sent.



                                          Decision will be

                                     entered for respondent.
