                                      SHELBY L. JORDAN AND DONAZELLA H. JORDAN, PETITIONERS
                                              v. COMMISSIONER OF INTERNAL REVENUE,
                                                           RESPONDENT
                                                        Docket No. 14572–07L.                 Filed January 11, 2010.

                                                  P wife signed a Form 900, Tax Collection Waiver, con-
                                               taining a waiver extending the 10-year period of limitations
                                               on collection for the first 4 of the tax years in issue. After
                                               signing the waiver, Ps entered into an installment agreement
                                               with R. Although P husband’s signature purportedly appears
                                               on the Form 900, P husband contends that he never signed
                                               the Form 900 and, therefore, the waiver is invalid as to both
                                               Ps. R contends that P husband signed the waiver and that,
                                               if P husband did not sign the waiver, the waiver is neverthe-
                                               less valid as to both Ps. Ps also contend that R failed to send
                                               Ps a notice of deficiency for the tax years in issue. Held: Adler
                                               v. Commissioner, 85 T.C. 535 (1985), which delineates the
                                               parties’ respective burdens of production and proof regarding
                                               the 3-year period of limitations on assessment under sec.
                                               6501(c)(4), I.R.C., also applies to cases involving the 10-year
                                               period of limitations on collection under sec. 6502(a)(1), I.R.C.
                                               Held, further, P wife may separately enter into a valid waiver
                                               of the 10-year period of limitations on collection for tax years
                                               for which she has filed a joint tax return, and the waiver is
                                               valid as to her. The waiver, however, is not valid as to P hus-
                                               band unless he also signed the Form 900 or unless he may not
                                               otherwise repudiate it. Held, further, because the waiver of
                                               the 10-year period of limitations on collection is a dispute
                                               regarding the underlying liability, we review de novo the
                                               issue of whether P husband’s signature on the Form 900 is
                                               authentic. Held, further, Ps did not meet their burden of

                                                                                                                                      1




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                                      2                  134 UNITED STATES TAX COURT REPORTS                                         (1)


                                               proving that P husband did not sign the Form 900. Held, fur-
                                               ther, alternatively, regardless of the authenticity of P hus-
                                               band’s signature, P husband may not repudiate the waiver
                                               contained in the Form 900. Held, further, because it is unclear
                                               from the record whether a notice of deficiency was sent to Ps
                                               for certain of the tax years in issue, we remand the case to
                                               R’s Appeals Office to clarify the record pursuant to Hoyle v.
                                               Commissioner, 131 T.C. 197, 205 (2008), as to those years.

                                           Pierce J. Guard, Jr., for petitioners.
                                           Jeffrey S. Luechtefeld, for respondent.

                                                                                  OPINION

                                         WELLS, Judge: Respondent sent a Notice of Determination
                                      Concerning Collection Action(s) Under Section 6320 and/or
                                      6330 (notice of determination) to petitioners with respect to
                                      a lien filed to collect petitioners’ unpaid tax liabilities for
                                      their 1986, 1987, 1988, 1989, 1994, and 1995 tax years. In
                                      response, petitioners timely filed a petition pursuant to sec-
                                      tion 6330(d) seeking review of respondent’s determination. 1
                                      We must decide the following issues: (1) Whether petitioners
                                      bear the burden of proof; (2) whether the signature of one
                                      spouse, who filed a joint return with the other spouse, is
                                      sufficient to bind both spouses to the waiver of the 10-year
                                      period of limitations contained in Internal Revenue Service
                                      (IRS) Form 900, Tax Collection Waiver; (3) if one spouse’s sig-
                                      nature is insufficient to bind both such spouses on the Form
                                      900, whether petitioner husband signed the Form 900 and
                                      whether our standard of review of that issue is de novo or
                                      abuse of discretion; (4) whether petitioner husband may
                                      repudiate the Form 900 after respondent relied upon it to
                                      enter into an installment agreement with petitioners; and (5)
                                      whether respondent sent petitioners a notice of deficiency for
                                      the tax years 1986, 1988, and 1989. 2

                                                                               Background
                                        Some of the facts and certain exhibits have been stipu-
                                      lated. The stipulations of fact are incorporated in this
                                      Opinion by reference and are found accordingly.
                                        1 Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and

                                      Procedure, and all section references are to the Internal Revenue Code, as amended.
                                        2 Petitioners concede that the notice of Federal tax lien for tax years 1994 and 1995 was sent

                                      within the period of limitations on collection.




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                                      (1)                            JORDAN v. COMMISSIONER                                           3


                                         At the time the petition was filed, petitioners resided in
                                      California.
                                         Petitioners are husband and wife. Petitioners filed joint
                                      Federal income tax returns for the tax years in issue.
                                         Petitioner Shelby L. Jordan (Mr. Jordan) was a profes-
                                      sional football player in the National Football League (NFL).
                                         On April 3, 1989, respondent assessed petitioners’ income
                                      tax for their 1987 tax year after petitioners filed a Federal
                                      income tax return and did not pay the tax shown on the
                                      return.
                                         On June 1, 1992, respondent assessed petitioners’ income
                                      tax for their 1986 tax year on the basis of an audit of peti-
                                      tioners’ return for that year.
                                         On April 26, 1993, respondent assessed petitioners’ income
                                      tax for their 1988 and 1989 tax years on the basis of an audit
                                      of petitioners’ returns for those years.
                                         On March 2, 1995, petitioner Donazella H. Jordan (Mrs.
                                      Jordan) signed Form 900 containing a waiver until December
                                      31, 2010, of the period of limitations on collection of peti-
                                      tioners’ tax due for petitioners’ 1985, 1986, 1987, 1988, and
                                      1989 tax years. The Form 900 contains a signature pur-
                                      porting to be Mr. Jordan’s, but Mr. Jordan disputes that the
                                      signature is his. Respondent’s revenue officer W. Wallace
                                      (Ms. Wallace) signed the Form 900 on March 6, 1995, on
                                      behalf of respondent. On March 20, 1995, petitioners entered
                                      into an installment agreement for their 1985, 1986, 1987,
                                      1988, and 1989 tax years (installment agreement). 3
                                         On July 8, 1996, respondent assessed petitioners’ income
                                      tax for their 1994 tax year after petitioners filed a Federal
                                      income tax return for that year but failed to pay the tax
                                      shown on the return.
                                         On September 30, 1996, respondent assessed petitioners’
                                      income tax for their 1995 tax year after petitioners filed a
                                      Federal income tax return for that year but failed to pay the
                                      tax shown on the return.
                                        3 Generally, any extension of the period of limitations on collection made before Dec. 31, 1999,

                                      would have expired on Dec. 31, 2002. However, any extension of the limitations period made
                                      in connection with an installment agreement will expire 90 days after the end of the extension
                                      period. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105–206, sec.
                                      3461(c)(2), 112 Stat. 764. As the Form 900 in the instant case was signed in conjunction with
                                      an installment agreement, if valid it would extend the limitations period to Dec. 31, 2010, plus
                                      90 days, or Mar. 31, 2011. See Joy v. Commissioner, T.C. Memo. 2008–197.




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                                      4                  134 UNITED STATES TAX COURT REPORTS                                         (1)


                                         On February 22, 2000, petitioners submitted an offer-in-
                                      compromise for their tax years 1985 through 1989, 1992, and
                                      1994 through 1999. On September 5, 2001, respondent
                                      rejected the offer-in-compromise. On June 19, 2002, peti-
                                      tioners paid respondent in full for their 1985, 1996, 1997,
                                      1998, 1999, and 2000 tax years.
                                         On February 13, 2007, respondent sent petitioners a Notice
                                      of Federal Tax Lien Filing and Your Right to a Hearing
                                      Under IRC 6320 with respect to their unpaid tax liabilities for
                                      their 1986, 1987, 1988, 1989, 1994, and 1995 tax years
                                      (NFTL).
                                         On March 13, 2007, petitioners timely submitted a Form
                                      12153, Request for a Collection Due Process or Equivalent
                                      Hearing. At the hearing, petitioners raised the issue
                                      of whether the 10-year period of limitations on col-
                                      lection remained open and whether the Form 900 was valid,
                                      contending that the signature on the Form 900 purporting to
                                      be Mr. Jordan’s was not, in fact, his signature.
                                         Appeals Officer S. Lavenburg (Ms. Lavenburg) conducted
                                      the review of petitioners’ file. On May 1, 2007, Ms.
                                      Lavenburg contacted Ms. Wallace, the revenue officer at the
                                      time the Form 900 was signed. The notice of determination
                                      states that Ms. Wallace confirmed to Ms. Lavenburg that
                                      both petitioners signed the Form 900 on March 2, 1995, and
                                      that she specifically remembered Mr. Jordan signing because
                                      he was an ‘‘N.F.L. player.’’ On May 2, 2007, Ms. Lavenburg
                                      contacted petitioners’ representative, J. Behar (Mr. Behar),
                                      and discussed the validity of Mr. Jordan’s signature on the
                                      Form 900. Ms. Lavenburg declined petitioners’ request that
                                      the IRS hire a handwriting expert to confirm that the signa-
                                      ture was in fact Mr. Jordan’s signature. On May 15, 2007,
                                      Ms. Lavenburg compared the signature on the Form 900 to
                                      those on petitioners’ 1989 and 1995 Federal income tax
                                      returns and noted that the signature on the Form 900
                                      matched that on the 1989 return but not that on the 1995
                                      return. Ms. Lavenburg ultimately concluded that the filing of
                                      the NFTL was appropriate.
                                         By letter dated May 24, 2007, respondent sent petitioners
                                      a notice of determination sustaining the filing of the NFTL
                                      with respect to petitioners’ 1986, 1987, 1988, 1989, 1994, and
                                      1995 tax years. Petitioners timely filed with this Court a
                                      petition for review of respondent’s determination.




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                                      (1)                            JORDAN v. COMMISSIONER                                           5


                                                                                 Discussion
                                         Section 6320(a)(1) requires the Commissioner to give any
                                      person liable to pay tax (hereinafter referred to as a tax-
                                      payer) written notice of the filing of a tax lien upon that
                                      taxpayer’s property. The notice must inform the taxpayer of
                                      the right to request a hearing in the Commissioner’s Appeals
                                      Office. Sec. 6320(a)(3)(B), (b)(1). The provisions of section
                                      6330(c), (d), and (e) generally govern the conduct of a hearing
                                      requested under section 6320. Sec. 6320(c).
                                         At the hearing, the taxpayer may raise any relevant issue
                                      including appropriate spousal defenses, challenges to the
                                      appropriateness of collection actions, and collection alter-
                                      natives. Sec. 6330(c)(2)(A). However, the taxpayer may chal-
                                      lenge the underlying tax liability only if the taxpayer did not
                                      receive a statutory notice of deficiency for the tax liability or
                                      did not otherwise have an opportunity to dispute the tax
                                      liability. Sec. 6330(c)(2)(B). In addition to considering issues
                                      raised by the taxpayer under section 6330(c)(2), the Appeals
                                      officer must also verify that the requirements of any
                                      applicable law or administrative procedure have been met.
                                      Sec. 6330(c)(1), (3); Hoyle v. Commissioner, 131 T.C. 197,
                                      201–202 (2008).
                                         Where the validity of the underlying tax liability is prop-
                                      erly in issue, the Court will review the matter de novo.
                                      Where the validity of the underlying tax is not properly in
                                      issue, however, the Court will review the Commissioner’s
                                      determination for abuse of discretion. Sego v. Commissioner,
                                      114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C.
                                      176, 181–182 (2000).
                                         We first decide whether petitioners bear the burden of
                                      proof. The period of limitations on collection is an affirmative
                                      defense, and the party raising it must specifically plead it
                                      and carry the burden of proof with respect to such defense.
                                      Rules 39, 142(a); Adler v. Commissioner, 85 T.C. 535, 540
                                      (1985). Although Adler involves the 3-year period of limita-
                                      tions on assessment pursuant to section 6501(c)(4), we con-
                                      clude that the reasoning of Adler also applies to the 10-year
                                      period of limitations on collection pursuant to section
                                      6502(a)(1). Consequently, a taxpayer who raises the 10-year
                                      period of limitations as an affirmative defense must establish
                                      a prima facie case that the period of limitations on collection




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                                      6                  134 UNITED STATES TAX COURT REPORTS                                         (1)


                                      has expired by proving that the Commissioner filed the NFTL
                                      after the expiration of the period of limitations on collection.
                                      If the taxpayer establishes such a prima facie case, the bur-
                                      den of production then shifts to the Commissioner to prove
                                      that an exception to the period of limitations applies. See sec.
                                      6502(a)(2); Adler v. Commissioner, supra at 540. The
                                      Commissioner may meet that burden by introducing a
                                      waiver, valid on its face, that extends the period of limita-
                                      tions on collection. Adler v. Commissioner, supra at 540. The
                                      burden of production then shifts back to the taxpayer to
                                      prove that the waiver is invalid or otherwise inapplicable. Id.
                                      The burden of proof, i.e., the ultimate burden of persuasion,
                                      never shifts from the party who pleads the bar of the period
                                      of limitations on collection. 4 Id.
                                         The record shows that the NFTL was filed 10 years after
                                      the date of assessment for petitioners’ 1986, 1987, 1988, and
                                      1989 tax years. Respondent introduced a waiver of the period
                                      of limitations on collection, signed in conjunction with an
                                      installment agreement, that made the filing of the NFTL
                                      timely. The signatures on such a waiver are presumed valid.
                                      See sec. 6064. Mr. Jordan contends that the waiver is
                                      invalid. Accordingly, Mr. Jordan bears the burden of proving
                                      that the waiver is invalid and, therefore, the ultimate burden
                                      of proving that the 10-year period of limitations on collection
                                      has expired.
                                         Before we address the validity of the waiver, we consider
                                      whether Mrs. Jordan’s signature on the Form 900 is suffi-
                                      cient to bind petitioners to the waiver of the 10-year period
                                      of limitations on collection 5 of their tax liabilities. Petitioners
                                         4 Petitioners do not contend that the burden of proof should be shifted to respondent pursuant

                                      to sec. 7491(a).
                                         5 Where the assessment of Federal income tax is made within the relevant period of limita-

                                      tions, the tax may be collected by levy if the levy is made within 10 years after the assessment
                                      of the tax. Sec. 6502(a); Boyd v. Commissioner, 117 T.C. 127, 130 (2001). In 1990, Congress
                                      amended sec. 6502(a)(1) to extend the period of limitations on collection of taxes after assess-
                                      ment from 6 years to 10 years. Omnibus Budget Reconciliation Act of 1990, Pub. L. 101–508,
                                      sec. 11317(a), 104 Stat. 1388–458. The 10-year limitations period applies to taxes assessed after
                                      Nov. 5, 1990, and to taxes assessed on or before that date if the 6-year limitations period under
                                      prior law had not expired as of that date. Id. subsec. (c), 104 Stat. 1388–458. Because respond-
                                      ent assessed tax for petitioners’ 1987 tax year on Apr. 3, 1989, and the 6-year limitations period
                                      under prior law had not expired as of Nov. 5, 1990, the 10-year limitations period on collection
                                      applies with respect to petitioners’ 1987 tax year. Respondent assessed petitioners’ income tax
                                      for all other years in issue after Nov. 5, 1990; consequently, the 10-year period of limitations
                                      applies to petitioners’ 1986, 1988, and 1989 tax years.
                                         Generally, Federal income tax must be collected within 10 years of being assessed. Sec. 6502.
                                      The period of limitations on collection may be extended in two cases: (1) Where the taxpayer




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                                      (1)                            JORDAN v. COMMISSIONER                                           7


                                      contend that, because a joint return must be signed by both
                                      parties, the waiver of the period of limitations must be
                                      signed by both parties in order to be effective. Respondent
                                      contends that one spouse may enter into a valid waiver for
                                      both spouses who have signed a joint return for the year cov-
                                      ered by the waiver, even if the other spouse has not signed
                                      the waiver.
                                         Section 301.6159–1(b)(1)(i)(A), Proced. & Admin. Regs.,
                                      provides that a taxpayer may agree to a reasonable extension
                                      of the period of limitations on collection when entering into
                                      an installment agreement. Generally, a husband and wife
                                      who file a joint return are jointly and severally liable for any
                                      tax liability that results from the filing of a joint return. Sec.
                                      6013(d)(3).
                                         Spouses filing a joint return are separate taxpayers. Dolan
                                      v. Commissioner, 44 T.C. 420, 428 (1965). Because they are
                                      separate taxpayers, each of them has an absolute right to
                                      waive the restrictions on assessment and collection. Id. Con-
                                      sequently, in respect of a year for which a joint return was
                                      filed, one spouse may enter into a waiver of the restrictions
                                      on assessment pursuant to section 6213(d) as to that spouse’s
                                      individual liability arising from a joint tax return without
                                      having the other spouse join in the waiver. Id.
                                         In the context of a waiver of the period of limitations on
                                      assessment pursuant to section 6501(c)(4), we have held that
                                      a waiver was valid as to the spouse who signed a waiver but
                                      not as to the nonwaiving spouse. Magaziner v. Commissioner,
                                      T.C. Memo. 1957–26; see also Tallal v. Commissioner, 77
                                      T.C. 1291 (1981).
                                         We conclude that the same reasoning contained in the
                                      Magaziner and Tallal cases applies to a waiver of the 10-year
                                      period of limitations on collection in section 6502(a)(1).
                                      Accordingly, we hold that the nonwaiving spouse is not
                                      bound by the waiver where the other spouse on a joint return
                                      has waived the 10-year period of limitations on collection.
                                      Mrs. Jordan admits to timely signing the Form 900, which
                                      contains a waiver of the period of limitations on collection.
                                      We therefore hold that the waiver is valid as to Mrs. Jordan
                                      enters into a valid installment agreement with the Commissioner, and (2) where the Commis-
                                      sioner releases a levy after the period of limitations on collection has expired. Sec. 6502(a)(2).
                                      In the case of an installment agreement, as in the instant case, the period of limitations expires
                                      90 days after the expiration of the installment agreement. Sec. 6502(a)(2)(A).




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                                      8                  134 UNITED STATES TAX COURT REPORTS                                         (1)


                                      and is valid as to Mr. Jordan only if he also signed the
                                      waiver or may not otherwise repudiate it. Consequently, we
                                      must decide whether Mr. Jordan signed the Form 900 or may
                                      not otherwise repudiate it.
                                         Petitioners contend that Mr. Jordan’s signature on the
                                      Form 900 was not his and that it was forged. Before we
                                      decide that issue, however, we must first consider whether
                                      we review the forgery issue de novo, i.e., whether the Court
                                      decides for itself whether the signature is Mr. Jordan’s, or
                                      instead under an abuse of discretion standard, i.e., whether
                                      the Appeals officer abused her discretion in concluding that
                                      Mr. Jordan signed the Form 900.
                                         We have held that a challenge to the 10-year period of
                                      limitations on collection is a challenge to the underlying
                                      liability. Boyd v. Commissioner, 117 T.C. 127, 130 (2001).
                                      Because it is a challenge to the underlying liability, a tax-
                                      payer may dispute the underlying liability at the Appeals
                                      Office hearing (and have such a dispute reviewed by this
                                      Court) only if the taxpayer did not receive a statutory notice
                                      of deficiency for such tax liability or did not otherwise have
                                      an opportunity to dispute it. Sec. 6330(c)(2)(B). Petitioners
                                      have had no prior opportunity to raise the issue of the under-
                                      lying liability on the basis of the expiration of the 10-year
                                      period of limitations on collection. That issue could be raised
                                      only in response to a collection proceeding that began after
                                      the expiration of the period of limitations on collection. Con-
                                      sequently, petitioners could not have raised the issue before
                                      commencement of respondent’s collection efforts. We there-
                                      fore hold that we will review de novo 6 the issue of whether
                                      the signature on the Form 900 purporting to be Mr. Jordan’s
                                      signature is, in fact, his signature. 7
                                         Under a de novo standard of review, we consider all of the
                                      relevant evidence introduced at trial. Respondent contends
                                      that the Court should not consider any evidence that is not
                                      in the administrative record at the time of the Appeals
                                      hearing, a limitation known as the administrative record
                                      rule. Murphy v. Commissioner, 469 F.3d 27 (1st Cir. 2006),
                                         6 Respondent argues, on the basis of Roberts v. Commissioner, T.C. Memo. 2004–100, that the

                                      abuse of discretion standard is the applicable standard of review. However, as Boyd v. Commis-
                                      sioner, supra, is directly on point, we follow Boyd.
                                         7 Because we reach this conclusion, we need not address whether this issue is also one that

                                      must be verified by the Appeals officer pursuant to sec. 6330(c)(1) and whether the standard
                                      of review under that provision would be de novo or abuse of discretion.




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                                      (1)                            JORDAN v. COMMISSIONER                                           9


                                      affg. 125 T.C. 301 (2005); Robinette v. Commissioner, 439
                                      F.3d 455 (8th Cir. 2006), revg. 123 T.C. 85 (2004). Recently,
                                      the Court of Appeals for the Ninth Circuit, to which an
                                      appeal in this case would lie, 8 adopted (in a case decided
                                      after trial and briefing of the instant case) the administrative
                                      record rule in section 6330 cases involving an abuse of discre-
                                      tion standard. Keller v. Commissioner, 568 F.3d 710, 718 (9th
                                      Cir. 2009). 9 However, because section 6330 requires a de
                                      novo standard of review when the underlying liability is
                                      properly in issue, the administrative record rule is not
                                      applicable to such a case. 10 5 U.S.C. sec. 554(a)(1) (2006)
                                      (Administrative Procedure Act does not apply where ‘‘a
                                      matter [is] subject to a subsequent trial of the law and the
                                      facts de novo in a court’’).
                                         As stated above, petitioners bear the burden of proving
                                      that the waiver is invalid. Both parties presented evidence
                                      concerning the authenticity of Mr. Jordan’s signature. Mr.
                                      Jordan testified that he did not sign the Form 900. Addition-
                                      ally, Mr. Jordan testified that he was not present when his
                                      wife signed the Form 900 on her own behalf and could not
                                      recall whether it was signed in connection with an install-
                                      ment agreement.
                                         Petitioners also called Richard Orsini, a handwriting
                                      expert, to testify. Mr. Orsini examined 11 checks that Mr.
                                      Jordan signed during 1995 (1995 checks). Mr. Orsini com-
                                      pared the signatures on the 1995 checks with Mr. Jordan’s
                                      alleged signature on the Form 900. Mr. Orsini found it
                                      highly probable that, on the basis of the signatures contained
                                      on the 1995 checks, the signature on the Form 900 was not
                                        8 The Tax Court will follow the law of the Court of Appeals to which an appeal would lie if

                                      that law is on point. Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th
                                      Cir. 1971).
                                        9 Keller v. Commissioner, 568 F.3d 710 (9th Cir. 2009), affg. T.C. Memo. 2006–166, Lindley

                                      v. Commissioner, T.C. Memo. 2006–229, McDonough v. Commissioner, T.C. Memo. 2006–234,
                                      Hansen v. Commissioner, T.C. Memo. 2007–56, affg. in part and vacating in part Barnes v. Com-
                                      missioner, T.C. Memo. 2006–150, Clayton v. Commissioner, T.C. Memo. 2006–188, Blondheim
                                      v. Commissioner, T.C. Memo. 2006–216, Ertz v. Commissioner, T.C. Memo. 2007–15, Abelein v.
                                      Commissioner, T.C. Memo. 2007–24, Carter v. Commissioner, T.C. Memo. 2007–25, Hubbart v.
                                      Commissioner, T.C. Memo. 2007–26, Freeman v. Commissioner, T.C. Memo. 2007–28, Johnson
                                      v. Commissioner, T.C. Memo. 2007–29, Estate of Andrews v. Commissioner, T.C. Memo. 2007–
                                      30, Catlow v. Commissioner, T.C. Memo. 2007–47, Smith v. Commissioner, T.C. Memo. 2007–
                                      73.
                                        10 The Tax Court does not follow the administrative record rule. See Robinette v. Commis-

                                      sioner, 123 T.C. 85 (2004), revd. 439 F.3d 455 (8th Cir. 2006).




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                                      10                 134 UNITED STATES TAX COURT REPORTS                                         (1)


                                      Mr. Jordan’s signature and that the evidence tended to show
                                      that the signature was probably made by his wife.
                                         Additionally, Mr. Jordan’s signature on petitioners’ 1995
                                      joint return does not appear to match the signature on the
                                      Form 900, and it does not appear to match Mr. Jordan’s sig-
                                      natures on the 1995 checks. The last name of the signature
                                      appearing on the Form 900 more resembles Mrs. Jordan’s
                                      signature of her last name than Mr. Jordan’s signature of his
                                      last name.
                                         Respondent offered countervailing evidence to prove that
                                      the signature on the Form 900 is Mr. Jordan’s signature. The
                                      signature on petitioners’ 1989 joint Federal tax return closely
                                      resembles the signature on the Form 900. Petitioners do not
                                      contest the authenticity of the signature on their 1989 tax
                                      return and do not contend that the signature on their 1989
                                      return is not Mr. Jordan’s signature.
                                         By way of background, as noted above, the notice of deter-
                                      mination states that Ms. Wallace remembered ‘‘that the
                                      waiver was signed by both Mr. and Mrs. Jordan in her pres-
                                      ence.’’ Also, the case activity record from the Appeals Office
                                      hearing shows that Ms. Lavenburg confirmed that Ms. Wal-
                                      lace ‘‘specifically remembers both [taxpayers’] signing [the]
                                      waiver because Mr. [Jordan] was an ‘N.F.L. player’.’’
                                         Importantly, we note that petitioners failed to call Mrs.
                                      Jordan to testify. Mrs. Jordan would be a key witness that
                                      potentially could corroborate Mr. Jordan’s testimony. Where
                                      a party who has the burden of proof fails to introduce evi-
                                      dence within his control and which, if true, would be favor-
                                      able to him, it gives rise to a presumption that, if produced,
                                      the evidence would be unfavorable. Wichita Terminal
                                      Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd.
                                      162 F.2d 513 (10th Cir. 1947). However, Wichita Terminal
                                      does not apply where the evidence is equally available to
                                      both parties. Kean v. Commissioner, 469 F.2d 1183, 1187 (9th
                                      Cir. 1972), affg. on this issue and revg. on another issue 51
                                      T.C. 337 (1968); Dang v. Commissioner, T.C. Memo. 2002–
                                      117. As respondent could have subpoenaed Mrs. Jordan to
                                      testify at trial, we do not apply Wichita Terminal to the
                                      instant case. 11
                                        11 Petitioners admit that Mrs. Jordan’s signature is authentic. However, it is unclear whether

                                      Mrs. Jordan was present when Mr. Jordan purportedly signed the Form 900. The notice of de-
                                      termination states that Ms. Lavenburg confirmed Ms. Wallace’s recollection, but respondent did




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                                      (1)                            JORDAN v. COMMISSIONER                                           11


                                         After considering the entire record, we are not persuaded
                                      that the signature on the Form 900 is not Mr. Jordan’s sig-
                                      nature. Petitioners therefore have failed to meet their burden
                                      of proof.
                                         Even if we were to conclude that Mr. Jordan did not sign
                                      the Form 900, we would alternatively hold that Mr. Jordan
                                      may not repudiate the waiver contained in the Form 900. We
                                      have held that a taxpayer ratified the waiver of the 10-year
                                      period of limitations on collection when he made payments
                                      pursuant to an installment agreement that was entered into
                                      on the basis of the waiver. Roberts v. Commissioner, T.C.
                                      Memo. 2004–100. By the time petitioners repudiated the
                                      waiver contained in the Form 900 or otherwise alerted
                                      respondent to the forgery issue, the limitations period, unless
                                      extended by the waiver, would have expired for 1987 and
                                      would have been relatively close to expiring for 1986, 1988,
                                      and 1989. 12 Petitioners entered into the installment agree-
                                      ment with the understanding that the 10-year period of
                                      limitations on collection would be extended. Had petitioners
                                      not agreed to the waiver, respondent could have begun collec-
                                      tion proceedings at that time. See sec. 6502(a). By signing
                                      the extension, petitioners received the benefit of having their
                                      liabilities collected through an installment agreement.
                                      Respondent relied on the waiver and should not now be
                                      deprived of his bargain of a longer collection period when
                                      petitioners received the benefit of a longer time to pay. See
                                      Liberty Baking Co. v. Heiner, 37 F.2d 703, 704 (3d Cir. 1930)
                                      (extending the period of limitations requires only consent,
                                      and ‘‘it would be unconscionable to allow the taxpayer to
                                      afterwards repudiate a consent upon which the Commis-
                                      sioner has acted and relied’’); Cary v. Commissioner, 48 T.C.
                                      not offer the testimony of either Ms. Wallace or Ms. Lavenburg.
                                        12 The earliest assessment date was Apr. 3, 1989, for petitioners’ 1987 tax year. Absent the

                                      waiver, the period of limitations for collection would have expired on Apr. 2, 1999. Tax for the
                                      1986 tax year was assessed on June 1, 1992, and the period of limitations on collection would
                                      have expired on May 31, 2002. Tax for the 1988 and 1989 tax years was assessed on Apr. 26,
                                      1993, and, absent the waiver, the period of limitations on collection would have expired on Apr.
                                      25, 2003. Petitioners submitted an offer-in-compromise to respondent on Feb. 22, 2000, and it
                                      was rejected on Sept. 5, 2001. An offer-in-compromise suspends the period of limitations for col-
                                      lection for the period that the offer is pending. Sec. 6331(k)(1), (3); sec. 301.7122–1T(h), Tem-
                                      porary Proced. & Admin. Regs., 64 Fed. Reg. 39026 (July 21, 1999). While the offer-in-com-
                                      promise would not have extended the limitations period for the 1987 tax year, it would have
                                      extended the limitations period for the 1986 tax year until Dec. 13, 2003, and for the 1988 and
                                      1989 tax years until Nov. 6, 2004. Petitioners first alerted respondent to a possible forged signa-
                                      ture on Oct. 20, 2003.




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                                      12                 134 UNITED STATES TAX COURT REPORTS                                         (1)


                                      754, 763 (1967) (‘‘A waiver proper on its face, relied on by the
                                      Commissioner, cannot be later repudiated by the taxpayer.’’).
                                         Accordingly, we hold that Mr. Jordan may not repudiate
                                      the waiver in the Form 900 extending the 10-year period of
                                      limitations on collection.
                                         Lastly, we decide whether petitioners may now raise in
                                      this Court the issue of whether a proper notice of deficiency
                                      was sent to them after they never raised it with respondent’s
                                      Appeals Office at the hearing. Petitioners contend that a
                                      notice of deficiency was not sent for any of the tax years in
                                      issue.
                                         Generally, the Commissioner cannot collect a tax until it
                                      has been formally and timely assessed. In years where a
                                      return is filed, the Commissioner may summarily assess the
                                      taxpayer as to the amount shown on the return without a
                                      notice of deficiency. Sec. 6201(a). However, in the case of a
                                      deficiency, the Commissioner must first issue a notice of defi-
                                      ciency and wait 90 days before assessing the tax. Secs.
                                      6212(a), 6213(a). To be timely, an assessment generally must
                                      be completed within the 3-year period of limitations. Sec.
                                      6501(a).
                                         In Hoyle v. Commissioner, 131 T.C. 197 (2008), we held
                                      that the verification of a valid notice of deficiency, if nec-
                                      essary, was a separate and independent requirement under
                                      section 6330(c)(1). This Court will consider a notice of defi-
                                      ciency claim under section 6330(c)(1) as long as it is appro-
                                      priately raised before this Court. Med. Practice Solutions,
                                      LLC v. Commissioner, T.C. Memo. 2009–214.
                                         The administrative record and the stipulation of facts show
                                      that petitioners’ taxes for their 1987, 1994, and 1995 tax
                                      years were assessed on the basis of the filing of joint
                                      tax returns after petitioners failed to pay the tax shown on
                                      the returns. In years where a return is filed, a notice of defi-
                                      ciency is not necessary when the Commissioner assesses
                                      liability stated on a return but remaining unpaid. Sec.
                                      6201(a). However, petitioners’ taxes for their 1986, 1988, and
                                      1989 tax years were assessed following audits. For those
                                      years, a notice of deficiency or appropriate waiver may have
                                      been necessary before a proper assessment could be made.
                                      See secs. 6212(a), 6213(a); Hoyle v. Commissioner, supra.
                                         The record before us is unclear as to whether a notice of
                                      deficiency was sent to petitioners for their 1986, 1988, and




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                                      (1)                            JORDAN v. COMMISSIONER                                           13


                                      1989 tax years. We have held that a verification generally is
                                      proper if the Appeals officer relied on a Form 4340, Certifi-
                                      cate of Assessments, Payments, and Other Specified Matters,
                                      or a transcript containing similar information. Nestor v.
                                      Commissioner, 118 T.C. 162 (2002). There is no mention of
                                      a Form 4340 in the record. Moreover, the original assessment
                                      dates in the early 1990s covered petitioners’ 1986, 1988, and
                                      1989 tax years; however, the transcript provided covers only
                                      petitioners’ tax years 2000 and forward. We therefore
                                      remand the instant case to respondent’s Appeals Office to
                                      clarify the record as to whether a notice of deficiency was
                                      sent to petitioners for each of the 1986, 1988, and 1989 tax
                                      years.
                                        The Court has considered all other arguments made by the
                                      parties and, to the extent we have not addressed them
                                      herein, we consider them moot, irrelevant, or without merit.
                                        To reflect the foregoing,
                                                                                  An appropriate order will be issued.

                                                                                f




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