Estate of Bonnie W. Deese, Deceased, Gladys Deese, Personal Representative - Page 6




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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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