T.C. Memo. 2015-118



                         UNITED STATES TAX COURT



            STEVEN N. LEVI AND CRISTINA LEVI, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 10903-13.                         Filed June 29, 2015.



      Harris L. Bonnette, Jr., for petitioners.

      Anne M. Craig and Lauren B. Epstein, for respondent.



                           MEMORANDUM OPINION


      DAWSON, Judge: This deficiency case is before us on respondent’s motion

for partial summary judgment filed pursuant to Rule 1211 on the ground that



      1
       All Rule references are to the Tax Court Rules of Practice and Procedure.
All section references are to the Internal Revenue Code in effect for the year in
issue.
                                         -2-

[*2] petitioners’ 2010 Federal income tax return is invalid because it was not

signed by them or an authorized agent. Petitioners objected to the motion by filing

timely responses. As explained herein, we will grant respondent’s motion.

                                    Background

      At the time petitioners filed their petition, they resided in Florida.

Petitioners’ 2010 Federal Income Tax Return

      In April 2011 petitioners hired Florida attorney Sarah Martello to prepare

their Form 1040, U.S. Individual Income Tax Return, for 2010 (2010 return). On

April 29, 2011, petitioners executed Form 2848, Power of Attorney and

Declaration of Representative, appointing Ms. Martello and her assistant, Misty

Priest, as their representatives. Ms. Martello prepared, signed, and timely

submitted petitioners’ 2010 return on their behalf, attaching thereto Form 2848,

which states in relevant part: “Acts authorized. * * * the authority does not

include * * * the power to sign certain returns”.

Notice of Deficiency

      The Internal Revenue Service (IRS) Philadelphia Service Center processed

petitioners’ 2010 return. It was not returned to petitioners for any further

signatures or modifications. On February 11, 2013, respondent issued a notice of

deficiency to petitioners determining a $10,500 deficiency in their 2010 Federal
                                         -3-

[*3] income tax, a $4,024 failure to file timely addition to tax pursuant to section

6651(a)(1), and a $16,094 accuracy-related penalty pursuant to section 6662(a).

Respondent determined that petitioners failed to report $30,000 in taxable

retirement income and overclaimed Federal income tax withholding of $69,970.

Petitioners filed a timely petition for redetermination with this Court on May 16,

2013.

Answer and Amended Answer

        On July 8, 2013, respondent filed an answer conceding that petitioners “did

not overclaim withholding credits” on their 2010 return and made adjustments to

petitioners’ return. Respondent also alleged that petitioners did not sign their

2010 return “in their names” and therefore, they “failed to file” a return for that

year. In his amended answer filed on July 10, 2013, respondent reiterated that

petitioners did not sign their 2010 return and that the agent who signed on their

behalf, Ms. Martello, lacked the authority to do so. Petitioners did not file a reply

to the amended answer.

Petitioners’ Separation and Divorce

        Although petitioners were married during the tax year in issue and when the

2010 return was submitted, they later separated. On July 11, 2013, a divorce
                                         -4-

[*4] proceeding was filed in Alachua County, Florida. Their divorce became final

on March 7, 2014.

Request for Admissions

      On August 5, 2014, respondent filed a first request for admissions pursuant

to Rule 90 requesting that petitioners admit the facts set forth in each of the

following requests:

            1. Attached as Exhibit A is a redacted copy of the Form 1040
      for 2010 that petitioners submitted to respondent.

            2. Petitioner Steven N. Levi did not sign petitioners’ Form
      1040 for 2010.

            3. Petitioner Christina Levi did not sign petitioners’ Form
      1040 for 2010.

           4. Attached to petitioners’ Form 1040 for 2010 is Form 2848,
      Power of Attorney and Declaration of Representative.

            5. The Form 2848, Power of Attorney and Declaration of
      Representative, attached to petitioners’ Form 1040 for 2010 does not
      authorize any representative or agent to sign petitioners’ Form 1040.

             6. Petitioner Steven N. Levi was not disabled or injured such
      that he was unable to make a return of his income, the deadline for
      filing for which was October 17, 2011, for taxable year 2010.

            7. Petitioner Steven N. Levi was not continuously absent from
      the United States for a period of at least 60 days prior to October 17,
      2011.
                                         -5-

[*5]          8. Petitioner Steven N. Levi did not request permission, in
       writing, of the district director for the internal revenue district in
       which is located his legal residence, for his return to be made by an
       agent.

              9. Petitioner Christina Levi was not disabled or injured such
       that she was unable to make a return of her income, the deadline for
       filing for which was October 17, 2011, for taxable year 2010.

             10. Petitioner Christina Levi was not continuously absent from
       the United States for a period of at least 60 days prior to October 17,
       2011.

              11. Petitioner Christina Levi did not request permission, in
       writing, of the district director for the internal revenue district in
       which is located her legal residence, for her return to be made by an
       agent.

              12. Petitioners’ Form 1040 for 2010 was not validly executed
       by either petitioner.

             13. Petitioners’ Form 1040 for 2010 is not a valid return.

       On September 3, 2014, petitioners’ counsel filed a motion for extension of

time to respond to respondent’s request for admissions. On September 8, 2014,

this Court granted petitioners an extension of time until October 3, 2014, to

respond to the request for admissions.

       On October 3, 2014, petitioners’ counsel filed a motion to withdraw as

counsel citing petitioners’ failure to communicate with him. Subsequently,
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[*6] following resolution of communication difficulties, on October 31, 2014,

petitioners’ counsel filed a motion to withdraw his motion to withdraw as counsel.

In addition, he confirmed that petitioners agreed to waive any potential conflict of

interest regarding his representation as counsel for both of them so that Mrs. Levi

could assert a claim for innocent spouse relief. On November 26, 2014, the Court

then granted petitioners’ counsel’s motion to withdraw his motion to withdraw as

counsel.

      Previously, on November 20, 2014, counsel for respondent reminded

petitioners’ counsel that petitioners had not responded to the first request for

admissions. To date, petitioners have neither filed a response to the first request

for admissions nor requested an extension of time to respond beyond the October

3, 2014, deadline. Therefore, the matters stated in the first request for admissions

are hereby deemed admitted pursuant to Rule 90(c).

Respondent’s Motion for Partial Summary Judgment

      On December 11, 2014, respondent filed a motion for partial summary

judgment. As previously indicated, petitioners filed a response objecting to the

motion and later filed two supplements to their response.
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[*7]                                  Discussion

       A partial summary adjudication may be made that does not dispose of all the

issues in a case if it is shown, inter alia, that there is no genuine dispute of material

fact with respect to the question on which partial summary adjudication is sought.

Rule 121(b); Sundstrand Corp. v. Commissioner, 

, 520 (1992), aff’d,

 (7th Cir. 1994). On the basis of our review of the record in this case,

we are satisfied that partial summary judgment may be rendered as a matter of law.

       Pursuant to section 6011(a), “any person made liable for any tax * * * shall

make a return * * * according to the forms and regulations prescribed by the

Secretary.” Any return required to be made “shall contain or be verified by a

written declaration that it is made under the penalties of perjury.” Sec. 6065.

Section 6061(a) provides that “any return, statement, or other document required

to be made under any provision of the internal revenue laws or regulations shall be

signed in accordance with forms or regulations prescribed by the Secretary.”

Regulations promulgated under section 6061 provide: “Each individual * * * shall

sign the income tax return required to be made by him, except that the return may

be signed for the taxpayer by an agent who is duly authorized in accordance with

paragraph (a)(5) or (b) of §1.6012-1 to make such return.” See sec. 1.6061-1,

Income Tax Regs. In addition, section 1.6012-1(a)(5), Income Tax Regs.,
                                         -8-

[*8] provides that a return may be made by an agent if the taxpayer is unable to

make the return by reason of disease, injury, or continuous absence from the

United States, or if, upon a showing of good cause, the taxpayer obtains

permission from the IRS. The regulation continues: “Whenever a return is made

by an agent it must be accompanied by a power of attorney (or copy thereof)

authorizing him to represent his principal in making, executing, or filing the

return.” Id.

      In general, a Federal income tax return that is not signed is invalid. Lucas v.

Pilliod Lumber Co., 

, 249 (1930); Bachner v. Commissioner, 

, 1280 (3d Cir. 1996); Brafman v. United States, 

, 868 (5th Cir.

1967). “Failure to satisfy the requirements for filing a return is fatal to the validity

and the timeliness of the return.” Elliott v. Commissioner, 

, 128

(1999). In addition, an invalid return remains invalid even if the IRS accepts and

processes it. See, e.g., Olpin v. Commissioner, 

, 1301 (10th Cir.

2001) (“[A]cceptance cannot cure an invalid return.”), aff’g T.C. Memo. 1999-

426; Downing v. Commissioner, T.C. Memo. 2007-291, 

, at

*10 (holding IRS acceptance of return and payment “would not waive the

statutory requirements for a valid return”); Julicher v. Commissioner, T.C. Memo.

2002-55, 

, at *14 (“[T]he signature requirement for purposes of a
                                         -9-

[*9] valid joint return may not be waived by Internal Revenue Service

personnel.”).

      Because petitioners are deemed to have admitted all the facts set forth in

respondent’s first request for admissions, there is no dispute as to any material fact

as to the matters set forth therein.

      Ms. Martello is the only person who signed petitioners’ 2010 return. The

Form 2848 attached to petitioners’ 2010 return did not authorize Ms. Martello or

any representative or agent to sign the 2010 return. Neither petitioner was:

(1) disabled or injured such that he or she was unable to sign the 2010 return, or

was (2) continuously absent from the United States for a period of at least 60 days

before October 17, 2011, nor did either petitioner (3) request permission, in

writing, of the District Director for the internal revenue district in which his or her

legal residence was located, for the 2010 return to be made by an agent. Clearly,

petitioners do not satisfy any of the conditions under which a return may be made

by an agent. See sec. 1.6012-1(a)(5), Income Tax Regs.

      In sum, because petitioners’ 2010 return was not signed by them or an

authorized agent, it was not a valid return. Therefore, we will grant respondent’s

motion for partial summary judgment.
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[*10] To reflect the foregoing,


                                                 An order granting respondent’s

                                           motion for partial summary judgment

                                           will be issued.