44 T.C. 420">*421 Respondent has determined deficiencies in income tax and additions to tax against petitioner as follows:

1965 U.S. Tax Ct. LEXIS 70">*77 The following issues are presented: (1) Did petitioner file joint returns with John T. Dolan for the years 1957 and 1958? (2) If petitioner filed joint returns with John T. Dolan for 1957 and 1958, does the fact that respondent assessed deficiencies against John T. Dolan bar respondent from subsequently proceeding against petitioner with respect to the same deficiencies? (3) If petitioner filed joint returns with John T. Dolan for 1957 and 1958, does this Court lack jurisdiction because of the fact that the notice of deficiency sent to petitioner was neither a single joint notice nor a duplicate original of a joint notice? ²

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

During the taxable years petitioner resided in Brentwood, St. Louis County, Mo. Federal income tax returns for 1957 and 1958, headed "John T. & Marie A. Dolan," were filed with the district director of internal revenue, 1965 U.S. Tax Ct. LEXIS 70">*78 St. Louis, Mo. Petitioner did not file separate individual income tax returns for 1957 or 1958.

Petitioner and John T. Dolan (hereinafter referred to as John) were married in June 1928. They filed joint Federal income tax returns for 1956 and some other years prior to 1957. The 1956 return of John and petitioner was received by the district director at St. Louis on April 18, 1957.

During 1956 and the first half of 1957 John increasingly neglected his obligation to support petitioner and their minor children. In 1957, he consistently failed to pay the household obligations, and only provided money when petitioner and the children were in need of groceries. He spent a great deal of time away from home on various trips and frequently came home under the influence of alcohol. On one occasion in July 1957 he hit petitioner with a chair, then kicked her after she fell down. Shortly thereafter, petitioner and John permanently ceased living together. They were not, however, separated 44 T.C. 420">*422 under a decree of divorce or separate maintenance at any time during 1957 or 1958.

On January 2, 1957, while petitioner and John were still living together as husband and wife, one Earl N. Page1965 U.S. Tax Ct. LEXIS 70">*79 and his wife executed a warranty deed conveying certain real property (sometimes hereinafter referred to as the Lindbergh Boulevard property) located in St. Louis County, Mo., to petitioner and John. On the same day petitioner and John executed a deed of trust covering the property to secure the purchase price. The following day, January 3, 1957, petitioner and John, by warranty deed, conveyed the Lindbergh Boulevard property to Joseph A. Simpkins and his wife. Joseph A. Simpkins (hereinafter referred to as Simpkins) was at the time and had been for some years John's employer. The purpose and effect of the above-mentioned transfers was to enable Simpkins to provide the money needed to exercise an option held by John on the property. It was agreed that John and petitioner would receive one-half the net profits if and when the Lindbergh Boulevard property was sold.

On March 14, 1958, petitioner filed in the Circuit Court, St. Louis County, Mo., a petition seeking divorce from John. On March 17, 1958, there was filed with the district director of internal revenue, St. Louis, Mo., a claim, signed by John and petitioner, for refund of 1956 income taxes in the amount of $ 792.28.

1965 U.S. Tax Ct. LEXIS 70">*80 On June 16, 1958, John and petitioner separately agreed to accept a total of $ 10,000 from Simpkins in exchange for their right to receive one-half the net profits to be realized when and if the Lindbergh Boulevard property was sold. Under the agreement, Simpkins was to pay the $ 10,000 by delivering to John and petitioner two $ 2,000 checks payable to John and petitioner jointly, and by delivering to Phil Kopitsky or Bond Investment Co. a check for $ 6,000 as full payment of a promissory note of John's. As part of the agreement, John and petitioner executed, on June 16, 1958, a quit-claim deed to the Lindbergh Boulevard property in favor of Simpkins and his wife. The provision for two $ 2,000 checks was insisted upon by Simpkins, who wanted to ensure that petitioner received some of the money. John endorsed one of the $ 2,000 checks over to petitioner, who, on June 17, 1958, deposited it in her checking account with the St. Louis County National Bank. ³ Petitioner was not fully aware of the significance of the above-described agreement and deed; her chief interest was in obtaining money needed to satisfy a number of unpaid bills. On the 1958 Federal income tax return filed1965 U.S. Tax Ct. LEXIS 70">*81 in the name of John and petitioner, the amount of $ 5,000, representing the taxable portion of the $ 10,000 paid by Simpkins, is reported as a capital gain.

44 T.C. 420">*423 It was also on June 16, 1958, that a Federal income tax return for the calendar year 1957, headed "John T. & Marie A. Dolan," was filed with the district director of internal revenue, St. Louis, Mo.

In connection with her divorce action petitioner filed, on January 12, 1959, a motion for alimony pendente lite and attorney's fees. The motion was granted on February 13, 1959; John was required to pay petitioner $ 100 per week as temporary alimony, $ 30 per week for the support of each of the two minor children of the marriage, and $ 750 for interim attorney's fees, and to deposit $ 50 as costs of court. John failed to make payments as required by the judgment of the court. Consequently, petitioner, on April 6, 1959, caused1965 U.S. Tax Ct. LEXIS 70">*82 execution to issue on such judgment in St. Louis County, Mo., and in the city of St. Louis. Subsequently, on May 4, 1959, petitioner instituted a garnishment action in the Circuit Court, St. Louis County, Mo., against Mary Dolan, John's sister, and against Ashland Oil & Refining Co. The garnishment action was dismissed by petitioner as to Mary Dolan on May 13, 1959, and as to Ashland Oil & Refining Co. on May 22, 1959.

A Federal income tax return for 1958, headed "John T. & Marie A. Dolan," was filed with the district director of internal revenue, St. Louis, Mo., on June 15, 1959. On June 25, 1959, a Form 870, accepting overassessments of income tax for the years 1952, 1954, 1955, and 1956 in the respective amounts of $ 71.09, $ 200, $ 427.24, and $ 407.27, was filed with the district director at St. Louis; this form was signed by John and petitioner.

On May 12, 1960, the Circuit Court of St. Louis County, Mo., granted petitioner a divorce from John. Petitioner received custody of the two minor children. John was ordered to pay petitioner $ 100 per month for the support of each minor child, $ 1 per year as alimony, and $ 750 as additional attorney's fee. Prior to May 12, 1960, 1965 U.S. Tax Ct. LEXIS 70">*83 no decree of divorce or of separate maintenance had been entered with respect to petitioner's marriage to John.

On or about June 29, 1962, John executed a Form 870, wherein he waived the restrictions on assessment and collection of deficiencies in income tax and additions to tax for the years 1957 and 1958 in amounts identical to those asserted against petitioner and placed in issue in the instant proceeding. Such amounts were assessed against John on August 31, 1962.

The notice of deficiency involved herein was mailed to petitioner at her then address ⁴ on October 9, 1962, which date was within the periods of limitations on assessment, as extended by consents executed by petitioner and respondent, with respect to the years 1957 and 1958. Prior 44 T.C. 420">*424 to the date on which the notice of deficiency was mailed, respondent had been notified that John and petitioner had established separate residences and had been given the address of each. Respondent did not mail to John a duplicate original of a joint notice of deficiency, or any statutory deficiency notice, covering the years 1957 and 1958. The notice of deficiency mailed to petitioner was neither a joint notice nor a duplicate1965 U.S. Tax Ct. LEXIS 70">*84 original of a joint notice. The notice of deficiency contained the statement, "The attached statement shows the computation of the deficiency or deficiencies." The statement referred to was headed in the following manner:

Mr. John T. Dolan

Mrs. Marie A. Dolan

(Husband and Wife)

1101A Ralph Terrace

Richmond Heights 17, Missouri

The explanations of several of the asserted adjustments refer to "your income tax return for the taxable year 1957 [or 1958]." The assessments made against John on August 31, 1962, were still outstanding at the time the notice of deficiency was mailed to petitioner.

Petitioner was familiar with Federal income tax returns. She knew what the returns looked like, and she knew that a smaller tax liability usually resulted from filing a joint return than from filing separate returns. The name "Marie A. Dolan" appearing on the signature lines of the 1957 and 1958 income1965 U.S. Tax Ct. LEXIS 70">*85 tax returns headed "John T. & Marie A. Dolan" was in each case signed by petitioner.

OPINION

The first issue is whether petitioner and John filed joint returns for the taxable years 1957 and 1958. It is petitioner's primary position that she did not sign and does not know how her name came to be signed on the returns in question. Petitioner has the burden of proving the returns were not joint returns. Myrna S. Howell, 10 T.C. 859">10 T.C. 859 (1948), affirmed per curiam 175 F.2d 240 (C.A. 6, 1949). She contends that either her signature was forged on the returns or she was tricked into signing them without knowing they were income tax returns.

Respondent produced as a witness a handwriting expert who testified that he had compared the signatures on the questioned returns with admittedly genuine signatures, as well as with other samples of petitioner's handwriting, and that in his opinion the signatures on the returns were executed by petitioner. Petitioner, on the other hand, has offered no evidence, other than her statements that she does not remember signing the returns, to support her claim of forgery. She admits that the signatures1965 U.S. Tax Ct. LEXIS 70">*86 resemble her own. We have given substantial weight to the testimony of the handwriting expert and have ourselves 44 T.C. 420">*425 examined the questioned signatures and compared them with the samples of petitioner's signature and handwriting contained in the record. We, too, are of the opinion that the signatures on the 1957 and 1958 returns are petitioner's. ⁵ Petitioner's claim of forgery must be rejected.

Petitioner's alternative contention is that she was tricked into signing the returns without her being aware of their true nature. To carry her burden of proving such trickery, petitioner relies largely upon her assertion that she would not knowingly have obligated herself to pay the taxes on John's income, in view of John's failure1965 U.S. Tax Ct. LEXIS 70">*87 to meet his obligations to pay his creditors and to support her and her minor children. Petitioner alleges that John or someone acting in his behalf might have accomplished the trickery with respect to the 1957 return at the time when petitioner signed the agreement with Simpkins and the accompanying deed. Those papers were signed on June 16, 1958, the same date on which the St. Louis district director received the 1957 return. Petitioner speculates that she might even have signed the 1957 return when she signed the claim for refund of 1956 taxes, which claim was received by the St. Louis district director on March 17, 1958. As to the 1958 return, petitioner claims she might unknowingly have signed that when she signed the Form 870, accepting overassessments for 1952, 1954, 1955, and 1956. The Form 870 was received by the district director on June 25, 1959, 10 days after the 1958 return was received.

We are of the opinion that petitioner has failed to prove that her signatures on the 1957 and 1958 returns were procured by trickery. Petitioner was admittedly familiar with the appearance of Federal income tax return forms such as those in question, as well as with the tax savings1965 U.S. Tax Ct. LEXIS 70">*88 resulting from the use of joint returns. Moreover, immediately below petitioner's signature on the 1957 return appears the legend "(If this is a joint return, wife's signature)." A similar phrase is printed immediately below the signature line on the 1958 return. ⁶ None of the other papers bears a close resemblance to a Form 1040. And although petitioner argues that opportunities existed for John or someone else to have obtained her signature on the returns, there 44 T.C. 420">*426 is no evidence concerning the circumstances surrounding her signing of the various papers which she claims might have been "shuffled." We know neither the dates on which she signed such papers, nor the persons present, nor the places of signing. Petitioner has not shown that John or anyone acting on his behalf was even present when petitioner signed the documents referred to. For all that appears, petitioner might have consulted with an attorney before signing any of the papers. In short, aside from admitting that she signed such papers, petitioner has presented no evidence which might tend to establish an opportunity for anyone to have tricked her into signing the returns in question. Mere speculation 1965 U.S. Tax Ct. LEXIS 70">*89 cannot take the place of evidence. Petitioner has the burden of proof as to this matter; she has not carried it.

We hold that petitioner must be treated as having filed joint returns with John for both 1957 and 1958. ⁷

1965 U.S. Tax Ct. LEXIS 70">*90 The second issue is whether the assessment of deficiencies against John on August 31, 1962, barred respondent from proceeding against petitioner with respect to the same deficiencies. Without deciding whether this issue is jurisdictional, ⁸ we hold, for the reasons hereinafter stated, that the assessment against John did not prevent respondent from establishing petitioner's liability for the deficiencies in question.

Section 6013 ⁹ provides that the tax liability of a husband and wife who file a joint return shall be joint and several. Inasmuch as the statute nowhere spells out the consequences of joint and several liability, it has been held that Congress intended the common law rules to apply. United States v. Wainer, 211 F.2d 669, 673 (C.A. 7, 1954). 1965 U.S. Tax Ct. LEXIS 70">*91 ¹⁰44 T.C. 420">*427 See Hanover Bank v. Commissioner, 369 U.S. 672">369 U.S. 672, 369 U.S. 672">687 (1962); First Savings & Loan Association, 40 T.C. 474">40 T.C. 474, 40 T.C. 474">482 (1963). One of the fundamental characteristics of joint and several liability is that the obligee, respondent here, may proceed against the obligors separately and may obtain separate judgments against each. Armour & Co. v. Justice Dairy, 311 S.W.2d 555 (Ky. 1958); Williams v. Reed, 113 Cal. App. 2d 195">113 Cal. App. 2d 195, 248 P.2d 147 (1952); 2 Williston, Contracts, sec. 328 (3d ed. 1959); Restatement, Contracts, sec. 119(3) (1932); 50 C.J.S., Judgments, sec. 759, and the cases there cited. Of course, the obligee is only entitled to have the obligation satisfied once. 2 Williston, Contracts, sec. 328. For purposes of applying these rules to the instant case, we may consider an assessment entered by respondent as equivalent to a judgment, since both permit an obligee to enforce the collection of the obligation by seizure and sale of the obligor's property. See Bull v. United States, 295 U.S. 247">295 U.S. 247, 295 U.S. 247">260 (1935);1965 U.S. Tax Ct. LEXIS 70">*92 Pipola v. Chicco, 169 F. Supp. 229">169 F. Supp. 229 (S.D.N.Y. 1959), modified 274 F.2d 909 (C.A. 2, 1960). Compare secs. 6303, 6321, 6322, 6323, 6331, and 6335 with, for example, Mo. Rev. Stat. secs. 511.350, 511.360, 511.440, 511.480, 513.020, 513.085, 511.090.

1965 U.S. Tax Ct. LEXIS 70">*93 As a preliminary question, we must consider whether the assessment against John on August 31, 1962, was validly made. That assessment was made pursuant to a waiver executed by John of the restrictions on assessment contained in section 6213(a). ¹¹1965 U.S. Tax Ct. LEXIS 70">*94 The waiver was evidenced by John's signature on Form 870, which form contained language indicating that it was intended to comply with section 6213(d). ¹² Section 6213(d) gives the right to file a waiver to "the taxpayer." Where, as in the case before us, joint returns were filed by husband and wife, the question arises as to whether husband and wife are to be treated as separate taxpayers or as a single taxpaying entity. We believe 44 T.C. 420">*428 that there is ample reason and authority for holding that they should be treated as separate taxpayers.

Inasmuch as section 7701(a)(14) defines "taxpayer" merely as "any person subject to any internal revenue tax," it is clear that we must look further for a resolution of the question facing us. Section 6013, which permits a husband and wife to file a joint return, does not expressly support or reject the single entity concept. In fact, it seems clear that Congress did not specifically consider the problem in this context. As previously noted, however, section 6013(d)(3) imposes joint and several liability upon husband and wife who make a joint return. Since joint and several liability necessarily implies the existence of at least two entities, section 6013(d)(3) provides very strong support1965 U.S. Tax Ct. LEXIS 70">*95 for the proposition that husband and wife remain separate taxpayers, even though they file a joint return. Furthermore, in the regulations setting forth the applicable rules for computing the income, deductions, and tax when joint returns are filed, it is provided, in part, sec. 1.6013-4(b), Income Tax Regs., "Although there are two taxpayers on a joint return, there is only one taxable income." (Emphasis added.) A substantially identical provision has been included in the regulations since 1949. Sec. 29.51-1(b)(1), Regs. 111, as amended by T.D. 5687, 1949-1 C.B. 9, 23. See also Robert A. Coerver, 36 T.C. 252">36 T.C. 252 (1961), affirmed per curiam 297 F.2d 837 (C.A. 3, 1962).

The case law also supports treating as separate "taxpayers" a husband and wife who have filed a joint return. In what appears to be the only case in which the single entity theory was expressly ruled upon, the court held that husband and wife who filed a joint return were separate taxpayers, so that an assessment entered pursuant to a notice of deficiency sent to the husband was ineffective as to the wife. United States v. Hammerstein, 20 F. Supp. 744">20 F. Supp. 744 (S.D.N.Y. 1937).1965 U.S. Tax Ct. LEXIS 70">*96 See Charles E. Van Vleck, 31 B.T.A. 433">31 B.T.A. 433 (1934), affd. 80 F.2d 217 (C.A. 2, 1935), certiorari denied 298 U.S. 656">298 U.S. 656 (1936); Harry Ekdahl, 18 B.T.A. 1230">18 B.T.A. 1230 (1930), acq. IX-2 C.B. 18. Compare 36 T.C. 252">Robert A. Coerver, supra.This Court will accept separate petitions from the parties to a joint return, even though section 6213(a) and section 272(a)(1) of the 1939 Code provide that "the taxpayer" may petition for redetermination of a deficiency. George Joannou, 33 T.C. 868">33 T.C. 868 (1960); Alex H. Davison, 13 T.C. 554">13 T.C. 554 (1949); Eva M. Manton, 11 T.C. 831">11 T.C. 831 (1948), acq. 1949-1 C.B. 3.

Since John was a separate "taxpayer" within section 6213(d), it follows that he had an absolute right at any time to waive the restrictions on assessment and collection contained in section 6213(a). See United States v. Price, 361 U.S. 304">361 U.S. 304 (1960). John exercised this 44 T.C. 420">*429 right by executing, on or about June 29, 1962, a Form1965 U.S. Tax Ct. LEXIS 70">*97 870 ¹³ in respect of the deficiencies in question. 1965 U.S. Tax Ct. LEXIS 70">*98 Under section 6601 (d) --

if notice and demand by the Secretary or his delegate for payment of such deficiency is not made within 30 days after the filing of such waiver, interest shall not be imposed on such deficiency for the period beginning immediately after such 30th day and ending with the date of notice and demand.

Thus, it seems clear that Congress contemplated that respondent would make notice and demand shortly after a waiver was filed under section 6213(d). Since, under section 6303(a), ¹⁴ assessment is made a prerequisite for notice and demand, it is clear that Congress also contemplated prompt assessment after a waiver is filed. The fact that no valid assessment could have been made against petitioner, who had filed no waiver, does not affect the validity of the assessment made against John.

We now return to the primary issue, i.e., whether respondent's assessment of deficiencies against John barred respondent from proceeding against petitioner with respect to the same deficiencies. Under section 6212(a), ¹⁵1965 U.S. Tax Ct. LEXIS 70">*99 respondent is authorized to send a notice of a deficiency only if he determines that there is a deficiency. Essentially, the issue turns on whether deficiencies, as defined by section 6211(a), ¹⁶ could exist as to petitioner after respondent had assessed the same deficiencies against John.

Under section 6211(a)(1)(B), the amount of what would otherwise be a deficiency must be reduced by "the amounts previously 44 T.C. 420">*430 assessed (or collected without assessment) as a deficiency." It is arguable that in computing the amount of a deficiency in the tax of one of two spouses who made a joint return, such deficiency should be reduced by amounts assessed as a deficiency against the other spouse. Nevertheless, we are of the opinion that it is far more logical and more consistent1965 U.S. Tax Ct. LEXIS 70">*100 with the statutory scheme to give credit under section 6211(a)(1)(B) only for amounts previously assessed against the taxpayer with respect to whom the computation of a deficiency is being made.

In the first place, it seems apparent from the language of section 6203 and the regulations thereunder ¹⁷ that an assessment is intended to have significance only with respect to the taxpayer whose liability is assessed. John and petitioner are separate taxpayers. We see no reason to construe section 6211(a) as reducing the deficiencies in the tax of one taxpayer by assessments made against a different taxpayer, especially where there is no evidence that such a construction was intended by Congress.

1965 U.S. Tax Ct. LEXIS 70">*101 Our conclusion is not altered by the fact that, under the parenthetical phrase in section 6211(a)(1)(B), the deficiencies in petitioner's tax would have been reduced by any amounts collected from John prior to the mailing of the statutory notice to petitioner. The reason for this provision is that, even though John and petitioner are jointly and severally liable for any deficiencies with respect to their joint returns, there is only one obligation for each year. Respondent is entitled to only one satisfaction of that obligation. Since payment by either spouse effects a pro tanto extinguishment of the obligation, the parenthetical phrase in section 6211(a)(1)(B) is wholly consistent with the joint and several liability of the spouses. To hold, however, that an assessment against John also had the effect of reducing the deficiency 44 T.C. 420">*431 as to petitioner would be inconsistent with the principles of joint and several liability. This is because, as we have already pointed out, an assessment is comparable to a judgment; and an unsatisfied judgment against one obligor does not discharge a coobligor who is jointly and severally liable. 2 Williston, Contracts, sec. 328; Restatement, 1965 U.S. Tax Ct. LEXIS 70">*102 Contracts, sec. 119(3).

A further indication that the statute contemplates an assessment which is effective against one party to a joint return but does not hamper enforcement of the liability of the other spouse, is found in section 6871(a). ¹⁸ Section 6871(a) requires the immediate assessment of any unassessed deficiency in income, estate, or gift taxes of taxpayers in respect of whom certain bankruptcy or receivership proceedings have been instituted. The assessment is to be made despite the restrictions imposed by section 6213(a); there is no express provision allowing similar assessment against the spouse of such a taxpayer. It hardly seems likely that Congress would have required, in section 6871(a), immediate assessment against a bankrupt taxpayer, if Congress had believed that such an assessment would, under section 6211(a), have prevented respondent from proceeding against the spouse of the bankrupt.

1965 U.S. Tax Ct. LEXIS 70">*103 Accordingly, we hold that, in the case of a joint return, the determination as to whether there is a deficiency within the meaning of section 6211(a) must be made separately for each spouse, and prior assessments against one spouse are not to be considered in making the computation with respect to the other spouse. It follows, then, that on October 9, 1962, there were deficiencies in petitioner's 1957 and 1958 income taxes, and that the statutory notice mailed to petitioner on that date was not invalidated by the prior assessment of the same deficiencies against John.

Petitioner contends that respondent, by entering assessments against John, elected to look only to him for satisfaction of the deficiencies. Petitioner cites Bledsoe v. Nickles, 91 S.W.2d 184 (Mo. App. 1936), where the court stated that "liability of the defendants in this case was either joint or several, at the plaintiffs' election." The cases and statute 44 T.C. 420">*432 cited by the court as authority for this proposition make it clear that, at the most, the court was referring to the old common law rule that the plaintiff could not secure both a joint judgment and several judgments1965 U.S. Tax Ct. LEXIS 70">*104 upon the same obligation. See United States v. Ames, 99 U.S. 35">99 U.S. 35, 99 U.S. 35">46 (1878). Compare Restatement, Contracts, sec. 119 (1). We can find no support, either in the law of Missouri or in the general principles of the law of joint and several obligations, for the proposition that obtaining a several judgment against one of two jointly and severally liable obligors constitutes an election which prevents the obligee from later obtaining a several judgment against the second obligor. Indeed, as hereinabove set forth, the rule is otherwise. There is no reason why an assessment should have different consequences in this regard than a judgment.

Furthermore, the doctrine of election of remedies is applicable only where the remedies are inconsistent. Estate of Samuel Stein, 37 T.C. 945">37 T.C. 945, 37 T.C. 945">952 (1962). There could be no inconsistency in entering assessments against John, then proceeding against petitioner, since John and petitioner were jointly and severally liable for the tax.

There is absolutely no merit in petitioner's contention that respondent, by assessing the deficiencies against John in reliance upon the waiver of restrictions1965 U.S. Tax Ct. LEXIS 70">*105 filed by John, entered into a closing agreement under section 7121 which barred respondent from proceeding against petitioner. Form 870 states on its face that it is not a closing agreement; it was not transformed into one by respondent's actions in assessing the deficiencies. The assessment against John, far from discharging him, formally established his liability for the deficiencies involved. Nor is it arguable that respondent's actions amounted to a release of or compromise with John, which release or compromise might inure to the benefit of petitioner. See sec. 7122; 2 Williston, Contracts, secs. 334-341. Compare Mo. Rev. Stat., sec. 431.150.

Petitioner's contention that the assessments against John constituted an election of remedies must, therefore, be rejected.

The third and final issue presented is whether respondent's failure to send to petitioner either a joint notice of deficiency or a duplicate original of a joint notice deprives this Court of jurisdiction over petitioner. Petitioner, relying on Natalie D. Du Mais, 40 T.C. 269">40 T.C. 269 (1963), contends that the notice sent to her did not comply with section 6212(b)(2) and that the defect in1965 U.S. Tax Ct. LEXIS 70">*106 the notice deprives us of jurisdiction. Respondent argues that the notice fully complied with the statute. Respondent recognizes that Du Mais is indistinguishable from the present case, but he urges that our decision therein was erroneous and should be disapproved. The parties have stipulated that the notice of deficiency mailed to petitioner on October 9, 1962, was neither a joint notice nor a duplicate original of a joint notice. The 44 T.C. 420">*433 only question is whether section 6212(b)(2) ¹⁹ authorizes respondent to send a separate notice of deficiency to one of two spouses who have made a joint return, when the other spouse is not entitled to a notice of deficiency.

1965 U.S. Tax Ct. LEXIS 70">*107 The language of section 6212(b)(2), set forth in footnote 19, supra, is not entirely free from ambiguity. Nevertheless, the meaning which most naturally flows from such language is that, in the case of a deficiency in respect of a joint return, respondent may send separate notices or he may send a single joint notice; but if he wishes to send a joint notice and has been notified that the spouses have established separate residences, he must send a duplicate original of the joint notice to each spouse. The statute does not expressly forbid respondent from sending separate notices to the spouses or to one of them, even if respondent has been notified of separate residences.

That the natural interpretation of section 6212(b)(2) was the one intended by Congress is indicated by the legislative history. The report of the House Ways and Means Committee, explaining section 272(a) of the Revenue Act of 1938, the original version of present section 6212(b)(2), reads as follows:

To conform to section 51(b) of the bill, which expressly provides for joint and several liability in the case of a husband and wife who file a joint return, express provision is made in section 272(a) of the bill1965 U.S. Tax Ct. LEXIS 70">*108 for the sending of a joint notice of deficiency if the Commissioner in his discretion desires to send a joint notice instead of separate notices of the deficiency. This accords with the established procedure under the Revenue Act of 1936 and prior acts. The committee feels, however, that, in the interests of fairness, an exception to such established procedure should be made in cases where, subsequent to the filing of the joint return and prior to the notice of deficiency, the spouses have established separate residences and notice of such fact has been given to the Commissioner. The last sentence of section 272(a) of the bill accordingly provides that a single joint notice may be sent in the general case but that, if the Commissioner has been notified by either spouse that separate residences have been established, then, in lieu of the single joint notice, duplicate originals must be sent by registered mail to each of the spouses at his last known address. [H. Rept. No. 1860, 75th Cong., 3d Sess., p. 48 (1938). Emphasis supplied.]

44 T.C. 420">*434 This report leaves no doubt as to the meaning of section 6212(b)(2). The provision relating to the sending of duplicate originals of1965 U.S. Tax Ct. LEXIS 70">*109 joint notices where respondent has been notified that the spouses have separate addresses clearly was intended to assure that each spouse received actual notice, if respondent chose to send a joint notice of deficiency. There was no intention, however, to forbid respondent from sending separate notices, regardless of the addresses of the spouses. Further authority for this interpretation of the statute is found in Kisting v. Commissioner, 298 F.2d 264 (C.A. 8, 1962), affirming a Memorandum Opinion of this Court. See also Dudley H. Bryant, 33 T.C. 201">33 T.C. 201 (1959).

After John had filed a waiver of the restrictions on assessment of the deficiencies here in issue, he was no longer entitled to receive a statutory notice in respect of such deficiencies. Moreover, after respondent had entered the assessments against John, there were no longer any deficiencies in John's income taxes for 1957 and 1958, the deficiencies having been eliminated by the act of assessment. See sec. 6211(a). Under these circumstances, absolutely no purpose could be served by requiring respondent to send John any form of statutory notice of deficiency. 1965 U.S. Tax Ct. LEXIS 70">*110 Furthermore, keeping in mind that section 6212(b) is entitled "Address for Notice of Deficiency," there could be no purpose served by requiring that John's name appear at all on the address of the notice of deficiency sent to petitioner, so long as petitioner was clearly apprised that the deficiency being asserted related to the joint returns of John and petitioner. In the instant case, the notice of deficiency made reference to an attached statement, which was headed as follows:

Mr. John T. Dolan

Mrs. Marie A. Dolan

(Husband and Wife)

1101A Ralph Terrace

Richmond Heights 17, Missouri

We believe the statutory notice of deficiency was wholly adequate to inform petitioner of the nature of the liability asserted.

Section 301.6212-1(b)(2), Proced. & Admin. Regs., though lending some support to petitioner's position, should not be deemed to vary the rule laid down by the statute itself and described above. In the first place, a comparison of section 272(a) of the Revenue Act of 1938 ²⁰1965 U.S. Tax Ct. LEXIS 70">*112 with 44 T.C. 420">*435 article 272-1, Regs. 101 ²¹ (the original version of sec. 301.6212-1(b) (2)), indicates that the regulation was intended only to paraphrase, not to limit, the statute. In the second1965 U.S. Tax Ct. LEXIS 70">*111 place, no rational end would be served by so construing this ambiguous regulation as to require something more than compliance with the purpose of the statute. The purpose of section 272(a) of the Revenue Act of 1938, as revealed by the legislative history quoted above, was to assure that each taxpayer received fair notice of the nature of the deficiency being asserted against him. Where, as in the instant case, the notice of deficiency was clearly calculated to convey such notice, the addition of the husband's name to the face of the notice would add nothing. This is particularly so where the husband is not entitled to a statutory notice. ²² Finally, where there is no doubt that the petitioner in fact received adequate notice of the deficiency, we would be extremely reluctant to hold the statutory notice invalid on account of a defect as minor as the one herein alleged, even if we were convinced that such a defect existed. Kisting v. Commissioner, supra at 268.

The material facts in 40 T.C. 269">Natalie D. Du Mais, supra, appear indistinguishable from those of the instant case. We should point out, however, that in Du Mais respondent filed a statement conceding that the Court lacked jurisdiction over the case. There is no indication that the attention of the 1965 U.S. Tax Ct. LEXIS 70">*113 Court was directed to the legislative history of section 6212(b)(2). In any event, we are convinced that the decision in Du Mais was predicated upon an erroneous interpretation of the statute, and is hereby overruled.

Decision will be entered for the respondent.

Dawson, J., concurring: While I am in complete accord with the majority opinion, I wish to add the following comments.

The Du Mais opinion was apparently based on the premise that in the case of a joint return the liability of the spouses in the event of a 44 T.C. 420">*436 deficiency can only be established by issuing to them a joint notice under the provisions of section 6212(b)(2). This premise, as I view it, did not give proper consideration to three principles of law:

First, even though a husband and wife may file a joint return, they remain separate and distinct taxpayers. Van Vleck v. Commissioner, 80 F.2d 217 (C.A. 2, 1935), affirming 31 B.T.A. 433">31 B.T.A. 433 (1934). The essential characteristic of joint and several liability is that a creditor may, at his option, sue each party to such liability separately, or all parties together. Sessions v. Johnson, 95 U.S. 596">95 U.S. 596 (1877).1965 U.S. Tax Ct. LEXIS 70">*114

Second, other sections of the Internal Revenue Code, i.e., secs. 6871 (a) and 6213(d), permit the assessment of deficiencies under certain specified circumstances without the mailing of a notice of deficiency. Take this example. A husband and wife file a joint income tax return. An examination is made of the return and it is determined that a deficiency exists. Before a deficiency notice can be sent, the husband alone is placed in bankruptcy. If it is concluded that the husband is a separate taxpayer for the purpose of section 6871(a), the Commissioner is permitted to make an immediate assessment against the husband, and the obvious purpose of the section is fulfilled. H. Rept. No. 1, 69th Cong. (1925), 1939-1 C.B. 355. If, however, it is concluded that the filing of a joint return creates not two separate taxpayers, but only one, then the Commissioner cannot avail himself of section 6871, a result which is attributable to the fact that the taxpayer entity, consisting of husband and wife, is not itself in bankruptcy. It is evident that adoption of the latter conclusion would not only place an unnecessary limitation on section 6871 but would seriously1965 U.S. Tax Ct. LEXIS 70">*115 hinder the purpose for which the section was enacted. The same thing would be true with respect to section 6213(d). See United States v. Price, 361 U.S. 304">361 U.S. 304 (1960).

Third, section 6212(b)(2) is not an independent section that operates in a vacuum, but rather a component part of section 6212, and its applicability is subject to the same prerequisites as section 6212. Section 6212(b)(2) presupposes the existence of a deficiency, because, if there is no deficiency, a notice of deficiency cannot be mailed and, if a notice of deficiency cannot be mailed, the manner of addressing the notice becomes completely irrelevant.

The application of these principles of law to the facts of Du Mais plainly demonstrates the incorrect conclusion reached in that case. In Du Mais, the deficiencies were assessed against the husband, who was a separate taxpayer, pursuant to the waiver provisions of section 6213(d). Since the wife, who was also a separate taxpayer, would not execute a similar Form 870 waiver, it became necessary to issue a notice of deficiency to her. However, although the wife was entitled to receive a notice of deficiency in accordance with1965 U.S. Tax Ct. LEXIS 70">*116 section 6212(a) 44 T.C. 420">*437 since a deficiency still existed with respect to her, the husband was not entitled to a notice of deficiency for two reasons: (1) He had executed a Form 870 and had thereby waived the restrictions on assessment and collection of the deficiencies, including the right to receive a notice of deficiency; and (2) after the assessment, no deficiency, as defined by section 6211, existed against the husband and a notice of deficiency to him purporting to determine such a deficiency would not be authorized by section 6212(a). See Stanley A. Anderson, 11 T.C. 841">11 T.C. 841 (1948). Since the husband and wife were not both entitled to the notice of deficiency authorized by section 6212(a), the provisions of section 6212(b) (2) were inapplicable. Consequently, it seems clear to me that the Commissioner's issuance of a separate notice of deficiency to Natalie Du Mais was not only valid, but it was the only form of action compatible with the deficiency and assessment provisions of the Internal Revenue Code.

For the reasons articulated so effectively in the majority opinion and for the added reasons mentioned here, I believe the Du Mais decision1965 U.S. Tax Ct. LEXIS 70">*117 was erroneous and that the rationale of Kisting is sound. The result reached here is right.

Pierce, J., dissenting.

This Court, in my opinion, lacks jurisdiction to decide this case, for the following reasons:

A. For each of the taxable years here involved, the petitioner and her husband filed a joint income tax return. Therefore, under the applicable statute and regulations hereinafter cited, the gross incomes and deductions of both spouses, and also the tax imposed thereon, must all be computed on an aggregate basis; and although there are two taxpayers, there is only one taxable income in respect of which any deficiency in the tax may be determined.

B. Prior to the issuance of the notice of deficiency herein, 100 percent of the deficiency computed in respect of said "one taxable income," had been assessed. Accordingly under section 6211 of the 1954 Code, there remained no "deficiency"; and in the absence of any such "deficiency" which this Court could "redetermine" under section 6213, the Court lacks jurisdiction to decide the case.

C. Prior to the issuance of the notice of deficiency herein, the Secretary or his delegate had been notified that the1965 U.S. Tax Ct. LEXIS 70">*118 spouses who had filed the joint return had established separate residences; and in such circumstance, section 6212(b) (2) of the Code required that "a duplicate original of the joint notice [of deficiency] shall be sent by certified mail or registered mail to each spouse at his last known address." (Emphasis supplied.) In the instant case, however, this express requirement of the statute was not met; and in the absence of the required 44 T.C. 420">*438 statutory notices to both spouses, one of the essential prerequisites to this Court obtaining jurisdiction is lacking.

In support of the foregoing, the following is submitted.

I

It should be observed at the outset, that we are here concerned with those provisions of the Internal Revenue Code of 1954 which control and govern the procedures that must be applied in determining "deficiencies" in respect of income taxes of taxpayers, in issuing statutory notices of any such "deficiencies," and in providing the prerequisites for this Court's jurisdiction under section 6213 of the Code to make a "redetermination" of any such "deficiencies." The construction and application of said statutory procedures is entirely a matter of Federal law, 1965 U.S. Tax Ct. LEXIS 70">*119 and not of local law. This is made clear by the following decisions of the Supreme Court: Burnet v. Harmel, 287 U.S. 103">287 U.S. 103, 287 U.S. 103">110:

Here we are concerned only with the meaning and application of a statute enacted by Congress, in the exercise of its plenary power under the Constitution, to tax income. The exertion of that power is not subject to state control. It is the will of Congress which controls, and the expression of its will in legislation, in the absence of language evidencing a different purpose, is to be interpreted so as to give a uniform application to a nation-wide scheme of taxation. * * * State law may control only when the operation of the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law. * * * [Emphasis supplied.]

Lyeth v. Hoey, 305 U.S. 188">305 U.S. 188, 305 U.S. 188">193-194:

The question as to the construction of the * * * federal statute is not determined by local law. We are not concerned with the peculiarities and special incidences of state taxes or with the policies they reflect. * * *

In the instant case, this Court has not, in my opinion, 1965 U.S. Tax Ct. LEXIS 70">*120 followed and applied the above-mentioned procedural requirements of the Code. Rather, it has changed or modified these Federal statutory procedures, by resort to principles of common law, to principles of local law including the law of the State of Missouri, to textbooks dealing with non-Federal problems, and to comparisons with judgments obtained under local laws -- all as shown by numerous citations and statements throughout the majority opinion.

In my opinion, this approach of the majority of the Court is unwarranted. For, since Congress has prescribed with particularity the procedural prerequisites to this Court obtaining jurisdiction, such prescriptions are controlling; and it is neither proper nor necessary to have recourse to other procedures employed under local laws. If for any reason, the Commissioner should conclude that said prescribed statutory procedures should be amended or modified, he should present his suggestions in this regard to the Congress, and not to this Court.

The first prerequisite to this Court obtaining jurisdiction under section 6213(a) of the 1954 Code, is that there must be a "deficiency" as defined in section 6211(a) of the Code. 1965 U.S. Tax Ct. LEXIS 70">*121 In the instant case, no such "deficiency" existed, either at the time of the issuance of the notice of deficiency herein or at the time of the filing of the petition with this Court; for at each of these times, 100 percent of the deficiency previously determined in respect of the joint income tax returns here involved, had already been assessed -- thereby eliminating any "deficiency" in respect of said joint returns.

1. Section 6013(a) provides that a husband and wife may (subject to exceptions not here material) make a single joint return of income taxes, even though one of the spouses has neither gross income nor deductions; and subparagraph(d) (3) of this section then further provides that, in such circumstance, the tax shall be computed on the aggregate income of both spouses, and the liability with respect to the tax shall be joint and several.

The regulations under this section ( Income Tax Regs., sec. 1.6013-4) implement the statute as follows:

(b) Computation of income, deductions, and tax. If a joint return is made, the gross income and adjusted gross income of husband and wife on the joint return are computed in an aggregate amount and the deductions1965 U.S. Tax Ct. LEXIS 70">*122 allowed and the taxable income are likewise computed on an aggregate basis. * * * Although there are two taxpayers on a joint return, there is only one taxable income. The tax on the joint return shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several. * * * [Emphasis supplied.]

It follows from the foregoing that, where a joint return has been filed (as was the situation for each of the taxable years here involved), there can be one, and only one, tax imposed in respect of the single aggregate taxable income of both the spouses; and it further follows that if there is any "deficiency" in respect of the tax so imposed, it can be only a single deficiency for which both spouses are jointly and severally liable -- and not two separate and identical deficiencies (one for each spouse) against which any credits for assessments or payments in respect of the single tax imposed, will be applied for the benefit of only one spouse to the exclusion of the other.

2. Section 6211(a) of the Code defines the term "deficiency"; and it also specifies how any amounts previously assessed (or collected without assessment) 1965 U.S. Tax Ct. LEXIS 70">*123 as a deficiency, must be credited against the single tax imposed. This section reads:

SEC. 6211. DEFINITION OF A DEFICIENCY.

(a) In General. -- For purposes of this title in the case of income, estate, and gift taxes, imposed by subtitles A and B, the term "deficiency" means the amount by which the tax imposed by subtitles A and B exceeds the excess of --

(1) the sum of

(2) the amount of rebates, as defined in subsection (b) (2), made.