- 6 - either capacity is outside the scope of judicial review in this proceeding. Moreover, by submitting the Form 870-AD, consenting to the immediate assessment and collection of their deficiencies, Mr. and Ms. Deese waived their right to a notice of deficiency and gave up any right to challenge their underlying liabilities in a collection proceeding. See sec. 6330(c)(2)(B); Aguirre v. Commissioner, 117 T.C. 324, 327 (2001); Rivera v. Commissioner, T.C. Memo. 2003-35, affd. 102 Fed. Appx. 594 (9th Cir. 2004).3 Hence, to the extent that petitioner means to challenge the underlying liabilities of Mr. Deese, such a challenge is precluded in this collection proceeding. 3 The petition alleges that Gladys Deese (Ms. Deese) signed the Form 870-AD, Offer to Waive Restrictions on Assessment and Collection of Tax Deficiency and to Accept Overassessment, for herself and her ailing husband, Bonnie W. Deese (Mr. Deese). We might question this allegation, inasmuch as the Form 870-AD seems to show the signatures of Mr. and Ms. Deese in two different hands. In his motion for summary judgment, respondent alleges that both Mr. and Ms. Deese signed the Form 870-AD. Since petitioner filed no response to respondent’s motion for summary judgment, we might assume that petitioner no longer disputes that Mr. Deese signed the Form 870-AD. See, e.g., Bergmann v. Commissioner, T.C. Memo. 1985-290. We need not decide this issue, however; even if we were to assume, for purposes of argument, that Ms. Deese signed the Form 870-AD on behalf of Mr. Deese, it would make no material difference for purposes of our ruling upon respondent’s motion for summary judgment. In particular, the petition does not allege or suggest that Ms. Deese lacked authority to sign the Form 870-AD on behalf of her husband; to the contrary, in the petition Ms. Deese appears to justify her allegedly signing Mr. Deese’s signature by reason of his illness. Similarly, petitioner has not alleged any duress, coercion, fraud, or misrepresentation such as might invalidate the waiver. See Shireman v. Commissioner, T.C. Memo. 2004-155.Page: Previous 1 2 3 4 5 6 7 NextLast modified: March 27, 2008