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question of whether a deficiency determination or assessment
against the transferor must precede imposition of transferee
liability, the Court of Appeals in Kuckenberg v. Commissioner,
309 F.2d at 206, summarily disposed of the transferees’
contentions as follows: “they assert that the United States does
not have the status of a creditor since no ninety-day letter was
sent to the corporation. However, the government need not take
futile assessment action against a taxpayer without assets.”
From these authorities, we conclude that the notice of
transferee liability received by petitioner is not rendered
ineffective either by the alleged invalidity of the notices of
deficiency sent to Mr. Espinosa in 1989 or by respondent’s
failure to issue deficiency notices to Mr. Espinosa with respect
to the returns filed in 1993. As regards the 1989 notices, these
documents neither created nor impacted the underlying tax debt.
Hence, their existence and any procedural irregularities in their
issuance are irrelevant to the question of whether a transfer is
constructively fraudulent, and, as will be seen below, we find it
unnecessary to reach the issue of actual fraud.
With respect to the failure to send Mr. Espinosa notices of
deficiency based on the filed returns, the law referenced above
does not require respondent first to take useless action against
a transferor. Here, Mr. Espinosa had earned no income since
1991, and respondent was aware that Mr. Espinosa’s financial
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