                        T.C. Memo. 1998-34



                     UNITED STATES TAX COURT



ESTATE OF DORIS J. SEVERT, DECEASED, DENISE M. HARPLE, EXECUTOR,
    Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16754-96.                    Filed January 27, 1998.



     Denise M. Harple (an executrix), for petitioner.

     Robert D. Kaiser, for respondent.


                        MEMORANDUM OPINION

     GOLDBERG, Special Trial Judge:   This case was heard pursuant

to section 7443A(b)(3) and Rules 180, 181, and 182.1

     Respondent determined a deficiency in Doris J. Severt's

(decedent's) Federal income tax for the year 1993 in the amount

1
     All section references are to the Internal Revenue Code in
effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
                                2

of $1,253.   The issue for decision is whether respondent is

estopped from assessing the deficiency in income tax.

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Decedent died on February

20, 1996, a resident of the State of Ohio.    The executor of her

estate, Denise M. Harple, was a resident of Ohio at the time the

petition was filed.

     Decedent and her former husband, Robert Severt,

electronically filed a joint Federal income tax return, dated

February 21, 1994, for the taxable year 1993.    Robert Severt died

on February 12, 1995.   Decedent was the sole beneficiary and

executrix of his estate, and she retained legal counsel to handle

the probate matter.   On March 24, 1995, decedent, as executrix,

executed Form 4810, Request for Prompt Assessment Under Internal

Revenue Code Section 6501(d), with respect to Robert Severt's

taxable years 1992, 1993, 1994, and 1995.    The request was

received by the Internal Revenue Service (IRS) on March 29, 1995.

By letter dated June 15, 1995, decedent was notified that Robert

Severt's returns for 1992 and 1993 had been accepted as filed.

Robert Severt's estate was closed in August 1995.

     On February 21, 1996, respondent mailed a letter which

proposed changes to decedent and Robert Severt's 1993 tax return.

On July 2, 1996, respondent issued a notice of deficiency to
                                  3

decedent and Robert Severt for the taxable year 1993.      In the

notice of deficiency, respondent adjusted the income of decedent

and Robert Severt to reflect unreported receipts totaling $5,640.

Respondent determined self-employment taxes in the amount of

$687.   Respondent further adjusted income to reflect the

allowance of a deduction for one-half of the self-employment

taxes so determined.

     Respondent's determinations are presumed correct, and

petitioner has the burden of proving them erroneous.      Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).       Petitioner

presented no evidence concerning the determinations made by

respondent in the notice of deficiency.      Rather, petitioner

argues that respondent is barred from making an assessment for

the year in issue.

     As a general rule, section 6501(a) provides that any income

tax imposed must be assessed within 3 years after the date that

the taxpayer's return is filed.       As an exception to the general

rule, section 6501(d) provides that with certain exceptions not

relevant here, with respect to any income tax for which a return

is required in the case of a decedent, the tax shall be assessed,

or a proceeding in court without assessment for the collection of

such tax shall be begun, within 18 months after written request

therefor is made by the executor.
                                4

     Section 6013(d)(3) provides: "if a joint return is made, the

tax shall be computed on the aggregate income and the liability

with respect to the tax shall be joint and several."      One of the

fundamental characteristics of joint and several liability is

that the obligee (respondent) may proceed against the obligors

(joint taxpayers) separately and may obtain a separate judgment

against each.   Dolan v. Commissioner, 44 T.C. 420, 427 (1965).

     In Garfinkel v. Commissioner, 67 T.C. 1028 (1977), the

taxpayer filed a joint income tax return for 1972 with her

husband, who died during that year.    A request for prompt

assessment was made with respect to his income tax liability for

that year.   Approximately 13 or 14 months later, the IRS sent a

reply that the return was accepted as filed.    In considering

whether the Commissioner was barred from issuing a notice of

deficiency in 1972 income tax to the taxpayer alone, the Court

first noted that the time for the IRS to make an assessment as to

her former husband expired 18 months after the request for prompt

assessment was made. Id. at 1032.     However, as to the taxpayer,

the Court held that because the normal 3-year period of

limitations had not expired as to any liability which she might

have, the notice of deficiency was valid as to her because she

was severally liable for the tax.     Id. at 1032-1033.

     Petitioner argues that we should not follow Garfinkel

because the Court was "construing an antiquated version of the
                                5

tax code at the time it was also engaged in antiquated

paternalistic thought."   Petitioner argues that joint and several

liability should be treated as a rebuttable presumption.    We are

unpersuaded by petitioner's arguments.   The version of section

6013(d)(3) in effect for the year in issue is identical to

section 6013(d)(3) as interpreted by the Court in Garfinkel.

When a joint return is filed, joint and several liability is

clearly imposed by statute.   Such liability may be avoided in

limited circumstances where innocent spouse relief is appropriate

or it is shown that a spouse's signature is obtained through

duress.   See sec. 6013(e); Brown v. Commissioner, 51 T.C. 116

(1968); Estate of Pearson v. Commissioner, T.C. Memo. 1988-366,

affd. 890 F.2d 353 (11th Cir. 1989).   Petitioner has not alleged

or shown that any of these exceptions applies.

     With respect to Robert Severt's tax liability for 1993, the

notice of deficiency was issued before the expiration of the 18-

month period for assessment under section 6501(d).    Moreover, the

shortened period for assessment under section 6501(d) does not

apply to petitioner, as decedent was jointly and severally liable

for any tax due.

     Petitioner argues that the doctrine of estoppel applies to

prevent respondent from determining a deficiency.    Petitioner

contends that the no-change letter sent in response to the prompt

assessment request filed with respect to Robert Severt's tax
                                  6

liability was a misrepresentation by respondent, relied upon by

the attorney for his estate in closing his estate.

     "Equitable estoppel is a judicial doctrine that 'precludes a

party from denying his own acts or representations which induced

another to act to his detriment.'"     Hofstetter v. Commissioner,

98 T.C. 695, 700 (1992) (quoting Graff v. Commissioner, 74 T.C.

743, 761 (1980), affd. 673 F.2d 784 (5th Cir. 1982)).    Estoppel

is applied against the Commissioner "with utmost caution and

restraint."    Id.   (quoting Estate of Emerson v. Commissioner, 67

T.C. 612, 617 (1977)); Kronish v. Commissioner, 90 T.C. 684, 695

(1988).

     Detrimental reliance on the action of the Government by the

party seeking to invoke equitable estoppel is a key condition.

Hofstetter v. Commissioner, supra at 700; Boulez v. Commissioner,

76 T.C. 209, 215 (1981), affd. 810 F.2d 209 (D.C. Cir. 1987);

Hudock v. Commissioner, 65 T.C. 351, 363 (1975).     There is no

evidence that decedent relied on the no-change letter to her

detriment.    The attorney may have relied on the no-change letter

in closing Robert Severt's estate; however, decedent was the sole

beneficiary of the estate, and the no-change letter caused no

apparent detriment to her.    In any event, she is severally liable

for the deficiency in 1993 income tax.    Thus, petitioner has not

shown that estoppel applies against respondent.

     To reflect the foregoing,
7

         Decision will be entered

    for respondent.
