Laura A. Loveland Espinosa - Page 19




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               A deficiency is not created by any act of the                          
               respondent, but by the facts and the legal significance                
               thereof as set out in the taxpayer’s income tax return.                
               The so-called “60-day [now 90-day] letter” is no more                  
               than notice to the taxpayer that the amount of a                       
               deficiency disclosed by its return has been determined                 
               under the applicable statute.  In our opinion no                       
               assessment, notice, or other act of the respondent is                  
               necessary to establish liability for income taxes.  We                 
               think that any deficiency existing at the date of a                    
               transfer of assets is a liability against such assets                  
               under the trust fund theory.  * * *  [Cleveland v.                     
               Commissioner, supra at 580-581 (fn. ref. omitted); see                 
               also Maher v. Commissioner, supra at 457; Kuckenberg v.                
               Commissioner, 35 T.C. at 483.]                                         
               Hence, the relevant procedural requirement for a proper                
          assertion of transferee liability is that respondent send to the            
          transferee a notice under section 6901 which serves to “inform              
          the transferee of the extent and nature of the tax deficiency               
          which he is claiming against the transferor.”  Kuckenberg v.                
          Commissioner, supra at 483-484.  Moreover, this rule is equally             
          applicable regardless of whether respondent is asserting that the           
          transferor is liable only for unpaid taxes and deficiencies or              
          whether respondent is claiming that the transferor is liable for            
          additions to tax as well.  See Bresson v. Commissioner, supra at            
          173; Gumm v. Commissioner, supra at 475; Kuckenberg v.                      
          Commissioner, supra at 474.                                                 
               We further note that the Court of Appeals for the Ninth                
          Circuit, to which appeal in the instant case would normally lie,            
          has adopted the foregoing principle.  See Kuckenberg v.                     
          Commissioner, 309 F.2d at 202.  In affirming the Tax Court on the           






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