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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.
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