Appendix — United States v. Mitchell (No. 798)

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IN THE

Supreme Cont of the United States

OCTOBER TERM, 1970

No. 798

UNITED STATES OF AMERICA and

COMMISSIONER OF INTERNAL REVENUE,

Petitioners,

—V.—

ANNE GOYNE MITCHELL, FRANCES ANGELLO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

INDEX

Page

Commissioner Vv. Mitchell, et al.:

Docket Entries in the Tax Court of the United States 1

Relevant Docket Entries in the United States Court of Ap-

peals ectacens sensninnnrsninmeeenasingnhnremmnete sis

SE REA Re aC er RO

EE TEP Re a 10

a cata 11

Stipulation of Facts... Rep R Oe Catto Rodan 14

Supplemental Stipulation of Facts Selebeateat ashes: $ 27

il INDEX

Page

Transcript of Proceedings:

Testimony of Anne Goyne Mitchell = 33

Second Supplemental Stipulation of Facts =. => 49

I ees lcaanhieeciciaete occ Richi naibeesisiaptathiionttienc 50

Findings of Fact and Presmncadle of the Tax Court —

January 27, 1969) _ he ts 51

Decision of the Tax Court src March 19, eee No.

6740-66 67

Decision of the Tax Court (Filed March 19, 1969), No.

6741-66 asd leeiaiees shasta os 70

ee CC Oe, ee Gee ee 71

pee ae eee, Ce eee. 72

Opinion of the Court of Appeals... = 73

Judgment of the Court of Appeals 83

United States v. Angello:

Docket Entries in the United States District Court 84

Relevant Docket Entries in the United States Court of

REE IRD RES EET: Sere anon OOS Oe 87

Petition for Removal from State Court, with attachments __ 88

ak selibeesanaclioaiinaecscoheanonisooons 93

I, I ii acta enicnsinicecnencsnbninintecaencm oases 94

Motion to Dismiss, with attachments 96

Hearing on Motion of United States to Intervene and Motion

of United States to Dismiss and Order —* Both

Motions 101

Answer to Petition in Intervention ______ RE SR ED 101

Interregatioricn (To Phintit) .......... ...——<—i—~ias

Request for Admissions LCE a

Motion for Summary Judgment on Behalf of Defendant,

Metropolitan Life Insurance Company __ 17 EEL Oo AR ae 106

Answers to Interrogatories (By Plaintiff) .... =. s«d208

Answer to Request for Admissions _ “Bi : Bec 5 a

Written Interrogatories (To United States of America) __. 110

INDEX

Answers to Interrogatories (By United States of America) _

Motion for Summary J udgment, with attachments __—__ we

Cross-Motion for Summary Judgment ___ SR NST eee

Hearing and Submission on Motion of United States of

America for Summary Judgment and Cross-Motion by

Plaintiff for Summary J . ., Sareea

Order Granting Motion of Intervenor for Summary Judg-

ment and Order Denying Plaintiff’s Cross-Motion for

Summary Judgment Ea eS ee ee

Notice of Appeal (Filed June De eee Se a

Findings of Fact and Conclusions of Law of the District

Judgment of the District Court = oe

Opinion of the Court of ERAS erie

Judgment of the Court of I ct ce Rexut

Order of the Supreme Court of the United States Granting

a Writ of Certiorari, dated January 18,1971

iii

Page

111

113

116

117

118

119

120

123

124

125

129

130

GENERAL DOCKET

TAX COURT OF THE UNITED STATES

Docket No. 6740-66

ANNE GOYNE MITCHELL

505 South Vienna Street

Ruston, Louisiana

PETITIONER

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Date Filings and Proceedings

Dec. 30, 1966 PETITION FILED: FEE PAID 12/30/66

Dec. 30, 1966 Request by Pet. for trial at New Orleans,

La. GRANTED 1/3/67

Feb. 21, 1967 ANSWER filed by Resp.

May 24, 1967 MOTION by resp. for entry of order

that undenied allegations in answer be deemed ad-

mitted.

May 29, 1967 NOTICE of filing of resp. motion for

order under Rule 18 and hearing on June 28, 1967.

(Reply due—6/15/67)

June 12, 1967 Reply filed by Petitioner.

June 13, 1967 ORDER, that respondent’s motion filed

May 24, 1967 is denied and this case is striken from

the calendar for Motions Session on June 8, 1967, at

Washington, D.C.

July 19, 1967 NOTICE OF TRIAL on October 3, 1967,

at New Orleans, La.

Oct. 24, 1967 TRIAL at New Orleans, La. before Judge

Forrester. ;

Resp. Motion to consolidate Dkts. 6740-66 & 6741-66.

No Obj. by Petr.‘ Filed, Granted & Served Oct. 24,

1967.

ici.d LSet a oe Fibre 8 ioe

STIPULATION OF FACTS filed.

SUPPLEMENTAL STIPULATION OF FACTS filed.

ORIGINAL BRIEFS DUE—January 22, 1968

REPLY BRIEFS DUE—March 7, 1968

UNDER SUBMISSION—JUDGE FORRESTER

Oct. 30, 1967 TRANSCRIPT of Oct. 24, 1967 New Or-

leans, Louisiana

Oct. 30, 1967 TRANSCRIPT of hrg. Oct. 23, 1967, at

New Orleans, La. rec’d

Jan. 16, 1968 MOTION by petr. to file Second Stipula-

tion of Fact. “No objection resp.” GRANTED Jan.

17, 1968. Second Supplemental Stipulation of Facts

Lodged.

Jan. 17, 1968 Second Supplemental Stipulation of fact

filed

Jan. 22, 1968 ORIGINAL BRIEF filed by petitioner.

Jan. 22, 1968 ORIGINAL BRIEF filed by respondent.

Mar. 7, 1968 REPLY BRIEF for Respondent filed

Mar. 8, 1968 REPLY BRIEF for Petitioner filed

Jan. 27, 1969 FINDINGS OF FACT AND OPINION

filed, Judge Forrester. Decision will be entered under

Rule 50.

Mar. 14, 1969 AGREED COMPUTATION filed

Mar. 19, 1969 DECISION ENTERED, Judge Forrester.

APPELLATE PROCEEDINGS

June 16, 1969 NOTICE OF APPEAL to U.S.C.A., 5th

Cir., filed by Petr.

June 17, 1969 NOTICE OF FILING with copy of No

tice of Appeal sent to Richard M. Hahn, Acting Chief

Counsel.

June 17, 1969 NOTICE, to parties, of assembling and

date for transmission of record.

GENERAL DOCKET

TAX COURT OF THE UNITED STATES

Docket No. 6741-66

JANE ISABELL GoYNE SIMs

6 Westwood Drive

Ruston, Louisiana

PETITIONER

Versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Date Filings and Proceedings

Dec. 30, 1966 PETITION FILED: FEE PAID 12/30/66

Dec. 30, 1966 Request by Pet. for trial at New Orleans,

La. GRANTED 1/3/67

Feb. 21, 1967 ANSWER filed by Resp.

May 24, 1967 MOTION by resp. for en

try of order

that undenied allegations in Answer be deemed ad-

mitted.

May 29, 1967 NOTICE of filing of resp. motion for

order under Rule 18 and hearing on June 28, 1967.

(Reply Due on or before June 15, 1967).

June 12, 1967 REPLY filed by Petitioner.

June 13, 1967 ORDER, that resp’s. motion filed May

24, 1967 is denied and this case is stricken from the

calendar for Motions Session on June 28, 1967, Wash-

ington, D.C.

July 19,1967 NOTICE OF TRIAL on October 23, 1967,

at New Orleans, La.

Oct. 24, 1967 TRIAL at New Orleans, La. before J udge

Forrester.

Resp. motion to consolidate Dkts. 6740-66 & 6741-66.

No obj. by Petr.: Filed, Granted & Served Oct. 24,

1967.

STIPULATION OF FACTS filed.

SUPPLEM®NTAL STIPULATION OF FACTS filed.

ORIGINAL BRIEFS DUE—January 22, 1968

REPLY BRIEFS DUE—March 7, 1968

UNDER SUBMISSION—JUDGE FORRESTER

Oct. 30, 1967 TRANSCRIPT of Oct. 24, 1967 New Or-

leans, Louisiana

Oct. 30, 1967 TRANSCRIPT of hrg. Oct. 23, 1967 at

New Orleans, La. rec’d

Jan. 16, 1968 MOTION by petr. to file Second Stipula-

tion of Fact. “No objection resp.” GRANTED Jan.

17, 1968. Second Supplemental Stipulation of Facts

Jan. 17, 1968 SECOND Supplemental Stipulation of

fact filed

Jan. 22, 1968 ORIGINAL BRIEF filed by petitioner.

Jan. 22, 1968 ORIGINAL BRIEF filed by respondent.

Mar. 7, 1968 REPLY BRIEF for Respondent filed

Mar. 8, 1968 REPLY BRIEF for Petr. filed

Jan. 27, 1969 FINDINGS OF FACT AND OPINION

filed, Judge Forrester. Decision will be entered under

Rule 50.

Mar. 14, 1969 AGREED COMPUTATION filed

Mar. 19, 1969 DECISION ENTERED, Judge Forrest-

er.

APPELLATE PROCEEDINGS

June 16, 1969 NOTICE OF APPEAL to U.S.C.A., 5th

Cir., filed by Petr.

June 17, 1969 NOTICE OF FILING with cy. of No-

tice of Appeal sent to Richard M. Hahn, Acting Chief

Counsel.

June 17, 1969 NOTICE, to parties, of assembling and

date for transmission of record.

wa

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Docket No. 28,163

[Caption Omitted]

RELEVANT Docket ENTRIES *

Date Filings & Proceedings

1969

July 28 Cause docketed and record on appeal filed

= = = =

1970

January 15 Argued and submitted to Ainsworth, Dyer and

Simpson

June 23 Opinion filed and judgment filed, entered and issued

as mandate

* These docket entries have been reconstructed from the peti-

tioner’s files. The original docket entry list was destroyed by fire

at the offices of the Court of Appeals in New Orleans.

mR

TAX COURT OF THE UNITED STATES

Docket No. 6740-66

Filed: Dec. 30, 1966

ANNE GOYNE MITCHELL, PETITIONER

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

PETITION

The above named petitioner hereby petitions for a re-

determination of the deficiencies set forth by the Com-

missioner of Internal Revenue in his notice of deficiency

bearing symbols PA:NO:WMB, dated September 30,

1966, and as a basis for her case, alleges as follows:

5. The facts upon which the petitioner relies as the

basis of this case are as follows:

(G) During the existence of the community of ac-

quets and gains between petitioner and her

former husband, Emmett L. Mitchell, Jr., all

of the income realized by either of them was

community income.

EXHIBIT “A”

Mrs. Anne Goyne Mitchell

505 South Vienna Street

Ruston, Louisiana 71270

Mrs. Anne Goyne Mitchell

P. O. Box 19772

Baton Rouge, Louisiana 70808

Dear Mrs. Mitchell:

In accordance with the provisions of existing internal

revenue laws, notice is hereby given that the determina-

tion of your income tax liability discloses a deficiency

for the taxable year ended December 31, 1955, in the

amount of $323.00 and additions to tax for delinquency

under Code section 6651(a) in the amount of $80.75

and for negligence under Code section 6653(a) in the

amount of $16.15; 4 deficiency for the taxable year end-

ed December 31, 1956, in the amount of $1,267.73 and

additions to tax for delinquency under Code section 6651

(a) in the amount of $316.93, for negligence under

Code section 6653(a) in the amount of $63.39, and for

failure to pay estimated income tax under Code section

quency under Code section 6651(a) in the amount of

$173.24, negligence under Code Section 6653(a) in the

8

amount of $43.57, and for failure to pay estimated in-

come tax under Code section 6654 in the amount of

$17.27. The enclosed statement shows the computation

of the deficiency or deficiencies.

xf you do not intend to contest this determination in the

Tax Court of the United States, please sign the encivsed

Waiver and return it promptly in the enclosed envelope.

This will permit early assessment of the deficiency or

deficiencies and limit accumulation of interest.

If you do not sign and return the Waiver, the deficiency

or deficiencies will be assessed for collection, as required

by law, upon the expiration of 90 days (150 days if you

are outside the States of the Union and the District of

Columbia) from the date of this letter, unless within

that time you contest this determination in the Tax

Court of the United States by filing a petition with that

Court in aesordance with its rules. A copy of the rules of

the Court ™. v be obtained by writing to the Clerk, Tax

Court of a.» United States, Box 70, Washington, D. C.

20044.

Very truly yours,

SHELDON S. COHEN

Commissioner

/s/ JOHN P. FITZGERALD

John P, Fitzgerald

Chief, Appellate Branch Office

Enclosures: 3

Statement

Waiver

Return envelope

AP:NO:MB:90-D

STATEMENT

Mrs. Anne Goyne Mitchel]

505 South Vienna Street

Ruston, Louisiana 71270

Mrs. Anne Goyne Mitchell

P. O. Box 19772

Baton Rouge, Louisiana 70803

Tax Liability for Taxable Years Ended Decem-

ber 31, 1955, December 31, 1956, December 31,

1957, December 31, 1958, and December 31, 1959,

Income Tax

Deficiency

Additions to Taz

Section Section Section

Year Tax 6651 (a) 6653 (a) 6654

1955 $ 323.00 $ 80.75 $ 16.15 —

1956 1,267.73 316.93 63.39 $ 35.49

1957 453.00 113.25 22.65 12.68

1958 1,750.71 425.02 87.54 47.00

1959 871.34 173.24 43.57 17.27

Totals $4,665.78 $1,109.19 $233.30 $112.44

1958 1959

Statutory deficiency $1,750.71 $871.34

Income tax withheld 50.65 178.37

Net underpayment of income tax $1,700.06 $692.97

The enclosed agreement form reflects this adjustment.

Inasmuch as you failed to file a return for each of the

taxable years ended December 31, 1955, December 31,

1956, December 31, 1957, December 31, 1958, and De-

ember 31, 1959, within the time prescribed by law, 25

10

per centum of the tax for each of said years has been

added to said tax in accordance with the provisions of

section 6651(a) of the Internal Revenue Code of 1954.

The five percent addition to the tax for each of the tax-

able years ended December 31, 1955, December 31, 1956,

December 31, 1957, December 31, 1958, and December

31, 1959, has been asserted under the provisions of sec-

tion 6653(a) of the Internal Revenue Code of 1954.

The addition to tax for failure to pay estimated tax

has been asserted for each of the years ended December

31, 1956, December 31, 1957, December 31, 1958, and

December 31, 1959, under the provisions of section 6654

of the Internal Revenue Code of 1954.

TAX COURT OF THE UNITED STATES

Docket No, 6740-66

Filed: Feb, 21, 1967

ANNE GOYNE MITCHELL, PETITIONER

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

ANSWER

THE RESPONDENT, in answer to the petition filed

in the above-entitled case admits, alleges and denies as

follows:

(F) and (G) Admits the allegations of subparagraphs

(F) and (G) of paragraph 5. of the petition.

11

Exuipir “A”

U. S. TREASURY DEPARTMENT

INTERNAL REVENUE SERVICE

OFFICE OF REGIONAL COMMISSIONER

Sep. 30, 1966

[EMBLEM |

Mrs. Jane Isabell Goyne Sims

6 Westwood Drive

Ruston, Louisiana 71270

Dear Mrs. Sims:

There will be assessed against you the following amounts

of income tax, plus interest as provided by law, and

additions to the tax, constituting your liability as a

transferee of the assets of Mrs, Anne Goyne Mitchell,

505 South Vienna Street, Ruston, Louisiana, 71270, or

P. O. Box 19772, Baton Rouge, Louisiana, 70803, for

unpaid income taxes in the amounts stated hereafter,

plus interest as provided by law, due from said Mrs.

Anne Goyne Mitchell:

Unpaid income tax for the taxable year ended December

31, 1955, in the amount of $323.00 and additions to tax

for delinquency under Code section 6651(a) in the

amount of $80.75 and negligence under Code section

6653(a) in the amount of $16.15; unpaid income tax

for the taxable year ended December 31, 1956, in the

amount of $1,267.73 and additions to tax for delinquency

under Code section 6651 (a ) in the amount of $316.93,

for negligency under Code section 6653(a) in the amount

of $63.39, and for failure to pay estimated income tax

under Code section 6654 in the amount of $35.49; un-

paid income tax for the taxable year ended December

31, 1957, in the amount of $453.00 and additions to tax

for delinquency under Code section 6651(a) in the

amount of $113.25, for negligence under Code section

6653(a) in the amount of $22.65, and for failure to pay

estimated income tax under Code section 6654 in the

amount of $12.68; unpaid income tax for the taxable

year ended December 31, 1958, in the amount of $1,700.06

—

12

and additions to tax for delinquency under Code section

6651(a) in the amount of $425.02 for negligence under

Code section 6653(a) in the amount of $87.54, and for

failure to pay estimated income tax under Code section

6654 in the amount of $47.00; and unpaid income tax

for the taxable year ended December 31, 1959, in the

amount of $692.97 and additions to tax for delinquency

under Code section 6651(a) in the amount of $173.24

for negligence under Code section 6653(a) in the amount

of $43.57 and for failure to pay estimated income tax

under section 6654 in the amount of $17.27. The en-

closed statement shows the computation of the amounts

of tax and additions to tax stated.

If you do not intend to contest this determination in

the Tax Court of the United States, please sign the

enclosed Waiver and return it promptly in the enclosed

envelope. This will permit early assessment of the tax

and additions to tax and limit accumulation of interest.

If you do not sign and return the Waiver, the unpaid

tax and additions to tax will be assessed for collection,

as required by law, upon the expiration of 90 days (150

days if you are outside the States of the Union and the

: District of Columbia) from the date of this letter, un-

: less within that time you contest this determination in

the Tax Court of the United States by filing a petition

with that Court in accordance with its rules. A copy

of the rules of the Court may be obtained by writing

to the Clerk, Tax Court of the United States, Box 70,

Washington, D. C. 20044.

Very truly yours,

SHELDON S. COHEN

Commissioner

(Signed) JOHN P. FITZGERALD

John P. Fitzgerald

Chief, Appellate Branch Office

ea One, ELM AE ELEN gat,

preity earn eee

Enclosures: 3

Statement

Waiver

Return envelope

AP:NO:MB:90-D

STATEMENT

Mrs. Anne Goyne Mitchell, Transferor

505 South Vienna Street

Ruston, Louisiana 71270

Mrs. Anne Goyne Mitchell, Transferor

P. O. Box 19772

Baton Rouge, Louisiana 70803

Tax Liability for the Taxable Years Ended

December 31, 1955, December 31, 1956, Decem-

ber 31, 1957, December 31, 1958, and December

31, 1959.

13

Mrs. Jane Isabel] Goyne Sims, Transferee

6 Westwood Drive

Ruston, Louisiana 71270

Section

6653 (a)

$ 16.15

63.39

22.65

87.54

43.57

Section

6654

$ 35.49

12.68

47.00

17.27

Income Tax

LIABILITY

Additions to Tax—Internal Revenue Code of 1954

Section

Year Tax 6651 (a)

1955 $ 323.00 $ 80.75

1956 1,267.73 316.93

1957 453.00 113.25

1958 1,750.71 425.02

1959 871.34 173.24

Totals $4,665.78 $1,109.19

1958 statutory deficiency

Prepayment credits not

claimed on return:

Withholding from wages

Net underpayment of

income tax

1959 statutory deficiency

Prepayment credits not

claimed on return:

Withholding from wages

Net underpayment of

income tax

$233.30

$1,750.71

50.65

$1,700.06

$ 871.34

178.37

$ 692.97

$112.44

AE ts a. CN —

14

The enclosed agreement form reflects these adjustments.

The records of this office indicate that assets were trans-

ferred to you by Mrs. Anne Goyne Mitchell on or about

December 28, 1964, without consideration, that such

transfer rendered Mrs. Mitchell insolvent, and that you

hold title to such assets for the account of Mrs. Mitchell.

The above-stated amounts represent your liability as a

transferee of assets of Mrs. Anne Goyne Mitchell for

the unpaid income tax and additions to the tax, plus

interest as provided by law, due from Mrs. Anne Goyne

Mitchell for the taxable years ended December 31, 1955,

December 31, 1956, December 31, 1957, December 31,

1958, and December 31, 1959.

TAX COUR or THE UNITED STATES

Docket No, 6740-66

Docket No, 6741-66

Filed: Oct. 24, 1967

ANNE GOYNE MITCHELL,

JANE ISABELL GOYNE SIMS, PETITIONERS

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

STIPULATION OF FACTS

IT IS HEREBY STIPULATED that, for the purpose

of this case, the following statements may be accepted

as facts and all exhibits referred to herein and attached

hereto are incorporated in this stipulation and made a

part hereof, subject to the right of either party to object

to the admission of such facts in evidence on the grounds

of materiality or relevance; provided, however, that

either party may introduce other and further evidence

not inconsistent with the facts herein stipulated.

15

1, Petitioner, Anne Goyne Mitchell, is an individual,

whose residence address is 505 South Vienna Street,

Ruston, Louisiana. Petitioner, Jane Isabel] Goyne Sims,

is an individual, whose residence address is 6 Westwood

Drive, Ruston, Louisiana.

2. Anne Goyne Mitchell and Emmett L, Mitchell, Jr.

were married on or about September 22, 1946,

3. At all times during the years 1955 through 1959,

inclusive, Anne Goyne Mitchel] was married to and co-

habiting with, Emmett L, Mitchell, Jr,

4. Sometime during July 1960, Emmett L. Mitchell,

Jr. and Anne Goyne Mitchel] began living Separate and

apart.

5. On or about August 4, 1961, Anne Goyne Mitchel]

filed suit for Separation from bed and board against

Emmett L. Mitchell, Jr., praying that she be allowed to

accept the community of acquets and gains with benefit

of inventory.

6. On or about September 14, 1961, Anne Goyne Mit-

chell was granted a Separation from bed and board a

“mensa et thoro,” against Emmett L. Mitchell, Jr,

7. On or about October 11, 1962, Anne Goyne Mitchel]

was granted a judgment against Emmett L. Mitchell,

Jr. decreeing unto her a divorce “a vinculo matrimonii’’,

8. During the existence of the marriage between

Anne Goyne Mitchel] and Emmett L. Mitchell, Jr., all

of the income realized by either party was community

income.

9. Emmett L. Mitchell, Jr. and Anne Goyne Mitchel]

did not file Federal income tax returns, neither jointly

hor separately, for any of the taxable years 1954, 1955,

1956, 1957, 1958 or 1959.

10. Form 870, Waiver of Restrictions on Assessment

and Collection of Deficiency in Tax and Acceptance of

Overassessment, covering the taxable years 1954, 1955,

1956, 1957, 1958 and 1959 was executed by Emmett L.

Mitchell, Jr. on or about January 11, 1961. The Federal

income tax liabilities indicated on said Form 870 for all

of said taxable years were determined pursuant to the

rates applicable to joint return filings. A copy of said

Form 870 is attached and marked Exhibit A.

—

16

11. Predicated on the Form 870 executed by Emmett

L, Mitchell, Jr. on or about January 11, 1961, Federal

income taxes and penalties were jointly assessed on

March 10, 1961, against Anne Goyne Mitchell and Em-

mett L. Mitchell, Jr. relative to the taxable years 1954

through 1959, inclusive.

12. The March 10, 1961 assessments of Federal in-

come taxes and additions to the tax, jointly assessed

against Anne Goyne Mitchell and Emmett L. Mitchell,

Jr., relative to the taxable years 1954 through 1959,

inclusive, was made without notice to or knowledge of

Anne Goyne Mitchell.

13. Anne Goyne Mitchell had not granted Emmett L,.

Mitchell, Jr. actual or implied consent, authority or

power to legally bind her relative to the Form 870 exe-

cuted by Emmett L. Mitchell, Jr. on or about January

11, 1961 covering Federal income tax liabilities for the

years 1954 through 1959.

14. Anne Goyne Mitchell never acquiesced or con-

sented to being a participant or partner in the Form

* 870, relative to the taxable years 1954 through 1959

signed by Emmett L. Mitchell, Jr. on or about January

. 11, 1961; nor did she consent or acquiesce to being obli-

gated or bound by such Form 870 or any subsequent

assessments thereunder.

15. The joint and several assessments of Federal in-

come taxes and additions to the tax, relative to the years

1954 through 1959, said assessments having been made

on March 10, 1961 were invalid and void as against

Anne Goyne Mitchell.

16. Anniebel Taylor Goyne, mother of Anne Goyne

Mitchell and Jane Isabell Goyne Sims, died on Novem-

ber 5, 1964. The succession proceedings of Anniebel

Taylor Goyne were opened in Lincoln Parish, Louisiana,

State District Court under Probate Docket Number

8880. The documents, Original Petition For Possession,

Affidavit and Sworn, Detailed List of Property, Compu-

tation Showing Inheritance Tax Due the State of Louisi-

ana, Waiver of Rule and Acknowledgment of Inheritance

Taxes Due, and Judgment of Possession, copies of which

RISC pet,

aa oe RS

17

are attached and marked Exhibits B, C, D, E and F,

respectively, in said probate proceedings were filed with

the State District Court on November 13, 1964,

17. On December 23, 1964, Anne Goyne Mitchel] did

grant, convey, transfer and deliver, all her right, title

and interest in the real estate, described in Exhibit F,

Judgment of Possession, inherited by Anne Goyne Mit-

chell from Anniebe] Taylor Goyne, unto Jane Isabell

Goyne Sims,

18, Attached hereto and marked Exhibit G is the

deed of conveyance, filed for record in Conveyance Book

1056, on December 24, 1964, Caddo Parish, Louisiana,

from Anne Goyne Mitchel] unto Jane Isabel] Goyne Sims

of the property described as:

Lots No. 70 and 71 of Caddo Heights Supplement

in Section 3, Township 20 North, Range 15 West,

Caddo Parish, Louisiana,

19. Attached hereto and marked Exhibit H is the

deed of conveyance, filed for record in Conveyance Book

number 106, on December 23, 1964, Lincoln Parish,

Louisiana, from Anne Goyne Mitchell unto Jane Isabell

Goyne Sims of the property described as:

S 14 of Lot No. 1 of Square No. 12, Town of Ruston,

Louisiana, together with all improvements and ap-

purtenances thereon and thereunto belonging, ac-

cording to the original plat and survey of Town of

Lot No. 45 of Unit No. 2 of Northwood Terrace

Subdivision, as per map and plat of said subdivision

on file and of record jn the office of the Clerk of

Court in and for Lincoln Parish, Louisiana;

All that part of E % of SE 1, Section 3, Town-

ship 19 North, Range 5 West, being situated in

Lincoln Parish, Louisiana.

20. On November 14, 1964, $2,402.78 was transferred

from the account of Mrs. Charles C. (Anniebel Taylor)

=

18

Goyne with the Ruston Building and Loan Association,

Ruston, Louisiana to the account of Anne Goyne Mitchell

with the said Ruston Building and Loan Association. A

copy of said Ruston Building and Loan Association’s

record of Anne Goyne Mitchell’s account is attached and

marked Exhibit I.

21. A copy of Ruston Building and Loan Associa-

tion’s record of Jane Isabell Goyne Sims’ account is

attached and marked Exhibit J.

22. Copies of optional payment by Ruston Building

and Loan Association unto Anne Goyne Mitchell, dated

December 28, 1964 and payment slip of Jane Isabell

Goyne Sims to Ruston Building and Loan Association,

dated January 26, 1965, are attached as Exhibit K,

23. On February 1, 1965, Anne Goyne Mitchell exe-

cuted Form 433-AB, Statement of Financial Condition

and Other Information, a copy of which is attached and

marked Exhibit L.

(Signed) Paut K. KirKPATRICK, JR.

Paul K. Kirkpatrick, Jr.

Counsel for Petitioners

LESTER R. URETz

Lester R. Uretz

Chief Counsel!

Internal Revenue Service

arfiwilis.. _ Senate theie

mm. Leulalana

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RUSTON BUILDING & LOAN ASSOCIATION

RUSTON, LOUISIANA

Pa nit

20

ou > —e . . ——-

,Bbe3, PRP IMENT INTERN SL REVENUE SLEVICE

art, 18 STATEMENT OF FINAKCIAL CONDITION AND OTHER INFORMATION

(Tob TAKPAY ER

ine GC, Mitchell

——— ee ee

————.

2. CHECK AL PHO onIA TE BLOCK:

j Doiwervtnuac

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95 South Vienna Street

yston, Louisiana

es

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Lives

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HE INDIVIDUAL, COMPLETE THIS SECTION ANDREVERSE OF TH S FORM

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lincoln Parish School Board lst of each

luston, Louisiana 255-1430 5 Years month

THER INCOME (Sowee) 20. AMOUNTS 2). MATES RECENVEO

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wut AL 2. wO.OF ExEUR Tae NAMG AND ADDRESS OF NEXT OF KIN (Other than spouse)

we io. Mrs, Jane G, Sims

2 Westwood Hills

ure eO Ruston, Louisiana

IF PARTNERSHIP OR CORPORATION, COMPLETE THIS SECTION ANO REVERSE OF THISFORM

TWaTEO AVEPAGE NET INCOME FOR NEXT 51K MONTHS:

SETHE FOLLOWING INFORMATION ON OFFICERS OR PARTNERS

NAME AND TITLE

ACORESS

NUMGER OF HARES

OR INTEREST

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SIGNATURE

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(REVERSE)

Form 433-AB (nev, @-63)

ANNE G. MITCHELL

505 SOUTH VIENNA STREET

RUSTON, LOUISIANA

23

STATEMENT SUPPORTING FoRM 4383-AB, ITEM 33

On December 23, 1964 transferred to my sister, Mrs.

Jane G. Sims, without consideration the following:

[.

My undivided one-half interest in the following real

property which was acquired by inheritance from

my mother in November, 1964:

Description

a. S 4 of Lot No. 1 of Square No. 12,

Town of Ruston, Louisiana, together

with all improvements and appurten-

ances thereon and thereunto belonging,

according to the original plat and sur-

vey of Town of Ruston, Louisiana on

file and of record in the office of the

Clerk of Court in and for Lincoln

Parish, Louisiana,

. Lot No. 45 of Unit No. 2 of North-

wood Terrace Subdivision, as per map

and plat of said subdivision on file

and of record in the office of the Clerk

of Court in and for Lincoln Parish,

Louisiana.

. All that part of E 14 of SE 4,

Section 3, Township 19 North, Range

5 West, being situated in Lincoln

Parish, Louisiana.

. Lots No. 70 and 71 of Caddo Heights

Supplement in Section 8, Township 20

North, Range 15 West, Caddo Parish,

Louisiana.

TOTAL VALUE OF REAL PROPERTY

Value of My

One-half Interest

In Mother’s

Succession

$7,500.00

500.00

1,500.00

___ 50.00

$9,550.00

24

II. Cash in savings account in Ruston Building & Loan

Association, Ruston, La. $1,721.21. 1/26/65

The foregoing assets were transferred to my sister on

the recommendation of my attorney who had just closed

my mother’s succession in November, 1964, approxi-

mately one month prior to receipt on December 19, 1964,

of the Final Notice Before Seizure for 1954 income tax.

Prior to closing my mother’s succession, I discussed with

my attorney the matter of the income tax liability for

1954 through 1959. He advised that I could renounce

my interest in the succession and thus pass my interest

in mother’s estate directly to my two children. However,

as it had been over two years since I was contacted by

Internal Revenue Agent, Deuel C. Smith, in regard to

signing with my former husband on his Offer in Compro-

mise, and I had heard nothing since, he felt that the

matter was settled and therefore put me in possession.

Then, after I received the Notice on December 19, 1964,

he felt that to protect my interest, the foregoing assets

should be transferred which would leave me in the same

financial status as if I had renounced my interest in

mother’s estate.

—_—_—_—-— SEPA <anieinEnh~qee a--~aep a

. x Doo The ewene i cee eee ee

sonm 453 b

qe. gdm, Se MOMVALY Hlth AM EXPER

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be ,

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TOTAL i$ 405,16 1

€T DIFFERENCE (Income minus persons! eayenses)

27

TAX COURT OF THE UNITED STATES

Docket No. 6740-66

Docket No. 6741-66

Filed: Oct. 24, 1967

ANNE GOYNE MITCHELL,

JANE ISABELL GOYNE SIMS, PETITIONERS

Versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

SUPPLEMENTAL STIPULATION OF FACTS

IT IS HEREBY STIPULATED that, for the purpose

of this case, the following statements may be accepted

as facts and all exhibits referred to herein and attached

hereto are incorporated in this stipulation and made a

part hereof, subject to the right of either party to object

to the admission of such facts in evidence on the grounds

of materiality or relevance; provided, however, that

either party may introduce other and further evidence

not inconsistent with the facts herein stipulated.

24, The separation from bed and board a mensa et

thoro, referred to in paragraph 6 of the Stipulation of

Facts document, was granted by default pursuant to

the petition of Anne Goyne Mitchell.

25. Upon the dissolution of the community of acquets

and gains between Anne Goyne Mitchell and Emmett

L. Mitchell, Jr., she received neither a distribution of

community property nor a property settlement.

26. Jane Isabell Goyne Sims was, at all times perti-

nent hereto, married to Robert B. Sims.

27. The schedule of the assessment of Federal income

taxes, penalties and interest for the taxable years 1955

through 1959, inclusive, made on March 10, 1961, fol-

lows:

28

Interest to

Taxable Account Income March 10,

Year Number Tax Penalties 1961

1955 66T363 $ 7438.92 $ 389.84 $215.19

1956 66T364 2,661.45 1,401.73 610.19

1957 66T365 1,043.53 547.22 176.64

1958 66T366 8,499.77 1,843.88 382.43

1959 66T367 1,415.53 742.30 69.74

28. No payments were made against the assessments

set forth in paragraph 27 for the taxable years 1956,

1957, 1958 and 1959.

29. The only payments made against the assessment

for the taxable year 1955, as set forth in paragraph 27,

were made by Emmett L. Mitchell, Jr., in the total

amount of $135.00; $50.00 having been paid on July 1,

1965 and $85.00 on December 7, 1965.

30. On March 20, 1964 Emmett L. Mitchell, Jr. sub-

mitted an Offer in Compromise, Form 656, incorporating

Collateral Agreements, Forms 2261 and Aud-748, regard-

ing his individual] liabilities for Federal income taxes

and penalties for the taxable years 1954 through 1959.

Copies of the aforementioned Form 656, Form 2261 and

Form Aud-748, submitted to the Internal Revenue Serv-

ice by Emmett L. Mitchell, Jr., dated March 20, 1964,

are attached as Exhibits M, N, and O, respectively.

31. The aforementioned Offer in Compromise and Col-

lateral Agreements were accepted by the Internal Reve-

nue Service on September 9, 1964. Copy of District

Director R. L, Phinney’s letter of acceptance, dated

September 9, 1964 is attached as Exhibit P.

82. Upon acceptance of the Offer in Compromise and

Collateral Agreements by the Internal Revenue Service,

Emmett L. Mitchell, Jr. made the following payments

thereunder:

29

Taxable year

Date Amount Payment applied against

9-09-64 $100.00 1954

10-14-64 25.00 1954

11-19-64 25.00 1954

7-01-65 50.00 1955

12-07-65 85.00 1955

33. No payments other than as shown in paragraph

31 were made by Emmett L. Mitchell, Jr. after accept-

ance by the Internal Revenue Service of the Offer in

Compromise and Collateral Agreements and said Offer

in Compromise and Collateral Agreements became in

default.

34. Form 870, Waiver of Restrictions on Assessment

and Collection of Deficiency in Tax and Acceptance of

Overassessment, covering the taxable year 1954 was exe-

cuted by Anne Goyne Mitchell on August 4, 1956. A

copy of said Form 870 is attached and marked Exhibit

35. Predicated on the Form 870 executed by Anne

Goyne Mitchell on August 4, 1965, the Federal income

tax, penalties and interest were individually assessed

against her for the taxable year 1954 on August 16,

1965 as follows:

Income tax $244.90

Penalties:

Section 294(d) (1) (A) $ 22.65

Section 6653 (b) 131.00 153.65

Interest ahs ges 152.32

Total assessment $550.87

Thereafter, on December 30, 1966, Anne Goyne Mit-

chell filed a claim for refund for the above amounts and

on July 25, 1967 brought a refund action in the United

States District Court for the Western District of Louisi-

ana based upon her claim, which action is stil] pending.

36. Anne Goyne Mitchell and Jane Isabel] Goyne Sims

are sisters.

—

37. On September 27, 1967, the procedures of abate-

ment were executed by the Internal Revenue Service

with respect to the assessment of Federal income taxes,

penalties and interest, made on March 10, 1961, as it

applied, in entirety, to Anne Goyne Mitchell for the

taxable years 1955 through 1959. Also on the same date,

the procedures of abatement were executed by the In-

ternal Revenue Service, with respect to the aforemen-

tiond assessment as it applied to Emmett L. Mitchell,

Jr., down to an amount which reflected the Federal

income taxes, penalties and interest against his one-half

portion of the community income for the taxable years

1955 through 1959, inclusive.

(Signed) Paut K. KIRKPATRICK, JR.

Paul K. Kirkpatrick, Jr.

Counsel for Petitioners

(Signed) Lester R, Urerz

Lester R. Uretz

Chief Counsel

Internal Revenue Service

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TRANSCRIPT OF PROCEEDINGS

Filed; Oct. 30, 1967

(10) ANNE GOYNE MITCHELL

was called as a witness on behalf of the Petitioner, and,

having been first duly sworn, testified as follows:

THE CLERK:

For the record, may we have your name?

THE WITNESS:

Anne Goyne Mitchell.

THE CLERK:

Your address?

THE WITNESS:

101 Ashway, Lafayette, Louisiana.

THE CLERK:

Thank you,

DIRECT EXAMINATION

BY MR. KIRKPATRICK:

Q Mrs. Mitchell, are you the Petitioner in Anne

Goyne [11] Mitchell vs. the Commissioner of Internal

Revenue in Docket No. 6740-66?

A Yes, I am.

Q Mrs. Mitchell, did you file any tax returns for the

years 1954 tiirough 1959?

A No,

Q Mrs. Mitchell, would you tell the Court why you

did not file ta». returns?

A Well I had not been responsible for filing tax re-

turns at any time after my marriage. Tax returns had,

as far as I knew, been filed each year.

MR. McARDLE:

Objection, Your Honor.

The returns themselves will be the best evidence as to

whether they were filed.

34

MR. KIRKPATRICK;:

If Your Honor Please, the witness has been assessed

penalties for failure to file returns and this testimony

goes to the reasonable cause for her failure to file and

negligence.

THE COURT:

I think I will let the statement stand. It isn’t worth

much as evidence unless you want to go into it to show

how she knew or thought she knew.

MR. KIRKPATRICK:

Yes, Your Honor.

THE COURT:

That’s a conclusion on the part of the witness and

worth nothing as evidence really unless it is expanded

I will let it stand.

[12] BY MR. KIRKPATRICK:

Mrs. Mitchell, when were you married?

September 22nd, 1946,

And you were divorced in 1962?

Yes.

During that period of time, did you ever file a

tax return?

A No.

Q Did you believe that your husband filed tax re

turns?

A Yes. I did.

Q Why did you believe that he was filing tax re

turns?

A He led me to believe that he was filing tax returns

each year at the proper time.

Q How did he lead you to believe that, Mrs. Mitchell?

A He talked about getting help with his, getting his

tax return filled out. He talked about the difficulty of

finding additional money when it was needed to pay the

taxes at the time that the taxes were due.

OPO PO

35

Q Mrs. Mitchell, did you know that someone in your

family was required to file Federal Tax Returns?

A Yes.

Q Did you know how much money your husband

made?

A No, I did not.

Q During the entire course of your marriage, did

you [13] ever know how much money your husband

made?

A No, I didn’t.

Q Did you ever ask your husband if he filed his tax

return?

A Yes, of course.

Q Did you ask him once or did you ask him many

times?

A Each year.

Q Is it your testimony you asked your husband each

year whether he filed his tax return or not?

A Yes. Yes.

Q Did you feel it necessary to ask him if he had

filed his tax return?

A Yes. I did.

Q Why did you find it necessary?

A Because he was very remiss in taking care of his

financial obligations in other respects.

I frequently had to make comments regarding things

that needed to be taken care of in a financial way.

Q Well did this cause you to think perhaps that he

had not filed his tax revurn?

A No. It did not.

Q Well if you were concerned about his not paying

other bills and being remiss in his financial obligations,

why did you not think he would be remiss in this type

of obligation?

A I would say this; I was not so much concerned

about [14] the possibility that he would not file a tax

return as the possibility that he would not make the

deadline at which time it should be filed.

I would not have dreamed that he would not have

filed the return because of his fear of the possible conse-

quences which I assume would be immediate.

36

Q Mrs. Mitchell, did it strike you as unusual that

your husband did not ask you to sign a tax return?

A No, it didn’t. I assumed that he signed my name

to the return which he had done prior to this time.

MR. McARDLE:

Objection,

If he had signed it, the return would be the best. evi-

dence of his signing.

THE COURT:

She said, she assumed he had signed her name as he

had done and that is a conclusion on the part of this

witness,

That will be stricken, unless you care to go into it.

BY MR, KIRKPATRICK:

Q Mrs. Mitchell, your husband ever told you that he

had signed your name?

A No. Just that he had sent the return.

MR. KIRKPATRICK:;:

If Your Honor, Please, it may not be the most impor-

tant point in the world but I suggest this witness’ as-

sumption is pertinent to this inquiry [15] because her

assumption does involve an attempt at negligence and

reasonable cause and—

THE COURT:

I think it is pertinent to the inquiry, too, Mr, Kirk-

patrick, but it is not worth yery much as evidence un-

less you show what it is based upon. The evidences that

led her to assume—

BY MR. KIRKPATRICK:

Q Mrs. Mitchell, you did assume a tax return had

been filed, did you not?

A Yes. I did.

Q Did your husband tell you that he was filing a

tax return?

37

A Yes, he did. Every year.

Q Did your husband tell you that he employed any-

one to prepare that tax revasn?

A Yes, he did.

Q Who did he say he employed?

A He said that he employed Mr. Albritton who was

an accountant in Farmerville, which was his hometown.

Q Would this be true during the entire period, Mrs.

Mitchell or would this be true as to a particular year?

A It would be true during, certainly during these

years that are under discussion.

Q Did you know, Mrs. Mitchell, that your husband

—did you know whether or not your husband—strike

that, please.

(16] Did you know whether or not you were required

to sign your husband’s Federal Income Return?

A_ Well, yes. I knew a joint return should be filed

or that a return should be filed.

Q And you knew that—did you know you had not

signed that return?

A Yes.

Q Were you conscious of this when you were asking

your husband if he had, if he had filed his tax return?

A Was I conscious that I had not signed the return?

Q Yes, Ma’am.

A No. Actually I was not for this reason; he had

filed returns in the past.

MR. McARDLE:

Objection, Your Honor, whether he had filed or not.

The returns would be the best evidence of that.

MR. KIRKPATRICK:

If Your Honor, Please, this case involves whether a

return was, in fact, filed.

This witness has been assessed penalties for her fail-

ure to file a return and for her intentional disregard

of the Rules.

This witness’ testimony is that she thought her hus-

band had filed returns. He had given her reasons to

believe that he had filed returns.

—a

38

THE COURT:

We are on the signatures on the return [17] now,

Mr. Kirkpatrick and the particular statement under at-

tack of the objection is that in the past he had signed

her name to returns.

Now obviously she’s talking about an instrument which

possibly might be available for introduction as an ex-

hibit and what has been invoked by the objection is the

best. evidence rule.

Unless you can show unavailability or some reasonable

attempt to obtain such a return or copy I think I will

have to sustain that objection.

MR. KIRKPATRICK:

Well I agree Your Honor.

As a matter of fact, the Government does not have

the returns.

THE COURT:

If you can show that then that is a showing of un-

availability and I will allow the witness to testify.

MR. KIRKPATRICK:

Well I really can’t, the witness is not competent to

testify that her husband signed her name to the return

if she had not signed the return herself. I agree she

cannot establish the fact her husband signed her name

to the return.

THE COURT:

I believe you misunderstood what I said, Mr. Kirk-

patrick.

I said I would allow the witness to testify as to prior

returns and maybe her not having actually seen them

[18] would become unimportant if you are able to show

the unavailability of such returns.

MR. KIRKPATRICK:

Will Counsel agree there are no such returns?

39

MR. McARDLE:

No, because I haven’t check the Federal records and

beyond that even if the Federal Government no longer

has the returns the best. secondary evidence would be

copies of the returns held by Anne Goyne Mitchell ana

no one has attempted to find out if she has copies of

the returns.

THE COURT:

Absent such a showing, I will have to sustain the

objection to the testimony.

MR. KIRKPATRICK:

All right, Your Honor.

BY MR. KIRKPATRICK:

Q Mrs. Mitchell, why did you believe that your hus-

band had signed your name to the returns?

A Well I knew that the return had to be signed.

The returns had been sent each year and I had not

signed them.

MR. McARDLE:

Objection, Your Honor.

THE WITNESS:

Therefore—

MR. McARDLE:

Objection.

The best evidence again. There is no evidence that

returns were signed or were mailed.

THE COURT:

That will be sustained.

BY MR. KIRKPATRICK:

Q Mrs. Mitchell, you have testified that you did not

[19] sign any returns and that you did not see the re-

turns and so obviously you do not know, of your own

personal knowledge, that the returns were filed and that

your name was signed to them?

40

A That's right.

Q I am asking you why you believed, as you testi-

fied, that your name had been signed to the return?

A Well T have reference here to the returns prior

to 1954.

Q Do you know, Mrs. Mitchell, that returns were

filed prior to 1954?

A’ To the best of my knowledge, although I did not

see them.

MR. McARDLE:

Objection, Your Honor.

MR. KIRKPATRICK;

If Your Honor, Please, this witness is competent to

testify if she does or does not have, does not know that

returns were filed.

MR. McARDLE:

The returns themselves are the best evidence, Your

Honor. I object.

MR. KIRKPATRICK:

Returns are the best evidence themselves, Your Honor,

but this witness’ knowledge cannot be shut out of. the

record simply because the Government cannot produce

returns.

THE COURT:

There is no showing of an attempt to get them, Mr.

Kirkpatrick. That’s the whole point.

[20] MR. KIRKPATRICK:

If Your Honor, Please, the return itself is not the

point that the Petitioner is trying to make,

The Petitioner is simply trying to develop the reasons

why she believed that a return had been filed. I do not

se that the witness can testify that a return was

led.

. If 1 will be permitted to continue, I will try to estab-

sh—

41

THE COURT:

Very well. Continue.

BY MR. KIRKPATRICK:

Q Mrs, Mitchell, you have testified that you have

never signed a return—

A (Witness nodded affirmatively. )

Q —from the period of 1946 until the termination

of your marriage.

Have you ever seen a tax return prepared for your-

self and your husband or for either of you?

No.

Q So you cannot testify, can you, that you saw a

return prepared or that you know that one was filed?

A No. I cannot.

Q Of your own personal knowledge, you could not

testify today, could you, that a return had ever been

filed during the time that you were married?

[21] A Not of my own knowledge. No.

Q You do testify that you thought a return had been

filed?

A Yes. I do.

Q Is it your testimony that you thought a return had

been filed each year?

A Yes, it is.

Q And you assumed that your name had been signed

to the return by your husband?

A That’s correct.

Q My question is: what led you to make that as-

sumption?

A Well, prior to 1954 these returns had been filed.

MR. McARDLE:

Objection.

THE WITNESS:

I don’t know how to answer the questions without—

BY MR. KIRKPATRICK:

Q Do you believe returns were filed prior to 19547

A Yes. I believe returns were filed all the way up

to the end of my marriage until I learned otherwise.

42

Q Why do you think returns were filed prior to 1954?

A Because each year at the time that returns should

be filed my former husband informed me that he was

filing the return at the proper time.

[22] Q Now, Mrs. Mitchell, although you believed

your husband was filing returns because he told you

he was—

A Yes.

Q —why did you think your name had been affixed

to the return?

A Well someone had to put my name on the return.

I did not do it. So, I assumed that he did.

Q Is it your testimony then that simply because you

assumed a return had been filed and you believed that

your name, your signature was necessary to the return

that you assumed from that that your name had been

affixed to the return?

A Yes.

Q Mrs. Mitchell, did you ever see a pay check of

your husbands?

A No. I did not.

Q Did you handle the money in your family?

A With regard to incidental household purchases,

yes.

Q You had a joint bank account?

A Yes.

Q And you drew checks upon that account?

A Yes.

Q Did you see the balances in that account?

A Very rarely.

Mrs. Mitchell, you transferred certain property

[23] to your sister. You transferred some real estate

aod you transferred a building and loan account which

you had inherited from your mother.

Did you have an agreement with your sister to re-

transfer that property to you?

A No. At the time I made the transfer under the

advice of my attorney.

Q Did your sister transfer any of that property back

to you prior to this deficiency being proposed?

43

A I have used some of the money from the building

and loan account.

Q How much have you used?

A Twelve hundred dollars.

Q In what year did you use that money?

A In 1965-66.

MR. KIRKPATRICK:

Thank you, Mrs. Mitchell.

That’s all.

CROSS EXAMINATION

BY MR. McARDLE:

Q Mrs. Mitchell, why did you separate from your

husband?

A Well it’s culmination of a long series of events.

I would say the primary cause, the crux of the whole

matter was his continuing financial irresponsibility over

a very long period of time.

[24] Q Did you attend college?

Yes, I did.

Are you a Teacher?

Am I a Teacher?

Yes.

Yes. I am.

Where do you teach now?

I teach at the University of Southwestern Louisi-

ana, at Lafayette.

Q And during some of the years here involved, you

taught at St. Paul’s; is that right?

A Yes.

Q Would you consider yourself a reasonably intelli-

gent woman?

A I would think so.

Q Now, you stated that you were aware Income Tax

Returns were required of individuals?

A Yes.

Q And you have testified that you never signed a

oe any return any time during your marriage?

es.

POPO Pop

44

Q And that you never saw a return and what not,

Did your husband gamble?

A_ I have reason to believe that he did. Yes,

Now he wasn't financially responsible in paying

his [25] debts?

A That's right.

Q Could he afford gambling losses?

A No. We could not,

Q And did he borrow money to finance his gambling?

A_ I don’t know,

He did borrow money but whether it was to finance

gambling, I don’t know.

Q Did he lie?

A Yes. Very often,

Q You consider gambling and borrowing money and

lying not supporting the family an irresponsible act?

A Yes, I did.

Q You would consider your husband to be irrespon-

sible?

A Yes, I would.

Q Did your husband sell the residence at 1255 Au-

burn Street in Monroe, Louisiana in 1956?

Yes, he did.

Was that property in joint names?

In joint names?

Was it your property and his property?

Yes.

When that property was sold, did you sign the

contract?

A (Pause). I honestly can’t remember.

26] Q Well you do realize if you have a legal docu-

ment such as a transfer of a home and what not where

your signature is required, that you are supposed to be

the one to sign it. Is that right?

A Yes.

Q And you don’t consider yourself irresponsible?

A No. I do not.

May I ask a question?

Is it not possible in Louisiana for a husband to trans-

fer property without the wife’s signature?

OPrOore>

—

45

Q Well I would have to look up all of the law before

I could answer that. I am sorry.

Did you ever ask your husband to see a retained copy

of the Income Tax Return?

A Yes, | have.

Q Did he show it to you?

A No. He did not.

Q Then you never saw either a retained copy or an

Income ‘Tax Return?

A No.

Q You stated that you and your husband had a joint

bank account, Is that correct?

A Yes.

Q And that you could draw checks from that bank

account?

{27} A I could with some degree of risk.

But you did?

What?

You did draw checks from that checking account?

On occasions,

Did you ever see the stubs?

You mean, the bank statement?

The statement or the checks?

Or checkbook stubs?

Either one?

Very rarely.

You did see them on occasions?

On occasions. Not the stubs, the bank statement

on occasions.

Q Did you ever go through any of these retained

copies of checks for the cancelled checks or the stubs

of the bank statement to determine if your incoming

liabilities had been paid?

A No. I did not.

Q Did you ever contact the Internal Revenue to see

if returns had been filed?

A Well it never occurred to me to do that.

Q Well then, you never verified actually that your

returns—never really attempted to verify if your returns

had been filed?

>o

FPOPO PO PO PO

46

[28] A No, I did not. But, may I say this; I assumed

that—

Q Yes. I understand that.

Is it correct in July of 1960 that you were informed

that no returns had ever been filed for the years '54

through 1960?

A That is correct.

Q Now this was July of 1960 and you were still

living with your husband?

A Yes, I was,

Q At that time, did you file a return for the years

involved?

A At that time did I—

Q After you found out Income Returns had not been

filed for 1954 through 1959, did you then file Income

Tax Returns for any of those years?

A_ No, I didn’t.

Q Not even for 1959?

A I filed a return for 1960.

Q Yes.

But, in July of 1960 you found out 1959 Tax Returns

had not bene filed; is that correct?

A Yes,

But, in July of 1960 you found out 1959 Tax Returns

had not been filed; is that correct?

A Yes.

Q And after you found out you did not file a 1959

Income Tax Return; is that correct?

[29] A_ TI had no idea that I could at that point.

Q Did you file one?

A I did not know. It did not occur to me to do so.

Q Now you stated that you inherited this real prop-

erty from your mother that you transferred on Decem-

ber 23rd to your sister, Jane Isabell Goyne Sims?

Yes.

ag did that under advice of counsel?

es.

a that advice of counsel related to Income Tax?

es.

POPrO>Y

47

Q In other words, he told you to get the property

out of your hands so it could not be collected for Income

Tax?

A At that time the Internal Revenue people from

Shreveport were threatening to seize the property and

to garnishee my salary, My attorney L, D, Knapper in

Ruston advised me to transfer the property to my sister

and so I did.

Q And you did this?

A Yes.

Q As you stated in your financial statement, without

consideration?

A Yes.

Q Now Exhibit “L” is the financial statement that

you prepared on February Ist, 1965, I believe.

Would you look at this?

[30] A Right here?

Q Yes.

Now this was signed on February Ist, 1965, is that

right, I believe?

Does that represent substantially the assets that you

held on December 23rd, 1964; in other words, excluding

the property you transferred to your sister on December

28rd, 1964?

You had no other property other than what is in that

statement?

A That’s right.

MR. McARDLE:

That’s all, Your Honor.

THE COURT:

Mrs. Mitchell, what was your college or university?

THE WITNESS:

Louisiana Polytech Institute in Ruston.

THE COURT:

Your degree?

THE WITNESS:

BS in Home Economics.

48

THE COURT:

Home Economics.

What is it you teach now?

THE WITNESS:

I am now teaching Speech.

THE COURT:

Speech?

THE WITNESS:

Yes.

. * * a

[3] RECROSS EXAMINATION

BY MR. McARDLE:

Q Mrs. Mitchell, you could write letters to the In-

ternal Revenue, could you not?

A It never occurred to me there was a need to write

letters to the Internal Revenue because I did not know

that returns had not been filed until I was so informed

in July of 1960.

Q You did not know that they had been filed either?

A No. But I had no reason to believe that they had

not been.

MR. McARDLE:

That’s all.

MR. KIRKPATRICK:

I have no further questions, Your Honor.

_

49

TAX COURT OF THE UNITED STATES

Docket No. 6740-66

Docket No. 6741-66

Filed: January 16, 1968

ANNE GOYNE MITCHELL,

JANE ISABELL GOYNE SIMS, PETITIONERS

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

SECOND SUPPLEMENTAL STIPULATION OF FACT

IT IS HEREBY STIPULATED that, for the purpose

of this case, the following statement may be accepted as

fact and the exhibit referred to herein and attached

hereto is incorporated in this stipulation and made a

part hereof:

38. On September 18, 1961 Anne Goyne Mitchell re-

nounced the Community of Acquets and Gains formerly

existing between herself and Emmett Leon Mitchell, Jr.

39. Attached hereto and marked Exhibit R is the Act

of Renunciation of Community filed for Record in Con-

veyance Book 84 at Page 371 on September 19, 1961,

Lincoln Parish, Louisiana.

(Signed) Paut K. KIRKPATRICK, JR.

Paul K. Kirkpatrick, Jr.

Counsel for Petitioners

1000 Ouachita Bank

Monroe, Louisiana 71201

(Signed) LESTER R. URETz

Lester R. Uretz

Chief Counsel

Internal Revenue Service

EXHIBIT R

STATE OF LOUISIANA

PARISH OF LINCOLN

RENUNCIATION OF COMMUNITY

BE IT KNOWN AND REMEMBERED, That on this

18th day of September, 1961,

BEFORE ME, the ger att Notary Public in and

for Lincoln Parish, State of Louisiana, and in the pres-

ence of the undersigned legal and competent witnesses:

PERSONALLY CAMS AND APPEARED, ANNE

GOYNE MITCHELL, a resident of Lincoln Parish, Lou-

isiana, who has been married but once and then to

Emmett Leon Mitchell, Jr., from whom she has been

judicially separated, who declared that:

She was judicially separated from Emmett Leon

Mitchell, Jr., on September 14, 1961, by Judgment ren-

dered in the Third Judicial District Court of Louisiana

in and for Lincoln Parish, in proceedings numbered

18094, Civil Docket, styled “Anne Goyne Mitchell vs.

Emmett Leon Mitchell, Jr.”

Appearer desires and is entitled to exonerate herself

from the debts contracted during the marriage of Ap-

pearer and Emmett Leon Mitchell, Jr.

In accordance with the laws of the State of Louisiana,

and particularly Articles 2410 and 2415 of the Revised

Civil Code of Louisiana, Appearer has and does hereby

and herewith renounce the legal partnership of the Com-

munity of Acquets and Gains that formerly existed

between her and Emmett Leon Mitchell, Jr.

Appearer declared that she has not done or performed —

any acts whatsoever indicating an acceptance of said

Community of Acquets and Gains.

IN WITNESS WHEREOF, This Act of Renunciation

of Community has been executed by ANNE GOYNE

MITCHELL in the presence of the undersigned legal

51

and competent witnesses and Notary Public in Ruston,

Lincoln Parish, Louisiana, on the day, month and year

first hereinabove written, after due reading of the whole.

ATTEST:

/s/ GLENDA LAUTER

/8/ ANNE GOYNE MITCHELL

Anne Goyne Mitchell

/s/ L. D. NAPPER

Notary Public in and for

Lincoln Parish, Louisiana

IN THE TAX COURT OF THE UNITED STATES

Docket Nos. 6740-66, 6741-66

Filed January 27, 1969

ANNE GOYNE MITCHELL, PETITIONER

Vv.

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

JANE ISABELL GOYNE SIMS, PETITIONER

Vv.

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

1. Held, that under the community property laws of

Louisiana a wife has a present, vested interest in the

income of the community and is therefore under a duty

to make either a single or a joint return, and is liable

for the tax on one-half of community income; and this

is so, even though the wife subsequently renounces the

community of acquets and gains and _ takes nothing

therefrom. Held, further, that wife’s failure to file a

return was without reasonable cause and her failure to

pay the tax was negligent. Determined penalty for un-

derpayment of estimated tax is mandatory since statu-

—— ————

52

tory exceptions are not applicable, and such determina-

tion is upheld.

2. Parties agree that a prior assessment against wife

and her husband was invalid and void as against wife.

Held, the thrust of sec. 6404, I.R.C, 1954, is permissive,

not mandatory, and respondent was not required to abate

void assessment before making determinations herein.

3. Held, liability for tax on one-half of Louisiana

community income is upon wife, and consequently her

gratuitous transfer of her separate property to her sis-

ter, which transfer left her insolvent, makes the sister

liable as a transferee.

Paul K, Kirkpatrick, Jr., for the petitioners.

Bruce A. McArdle, for the respondent.

FORRESTER, Judge: In these consolidated cases re-

spondent has determined the following deficiencies in

identical amounts against Anne Goyne Mitchell, peti-

tioner in docket No. 6740-66, and against Jane Isabell

Goyne Sims, petitioner in docket No. 6741-66, as trans-

feree of the assets of Anne Goyne Mitchell:

Year Income tax Sec. 6651(a) Sec. 6653(a) Sec. 6654

1955 $ 323.00 $ 80.75 $ 16.15 0

1956 1,267.73 316.93 63.39 $ 35.49

1957 453.00 113.25 22.65 12.68

1958" 1,750.71 425.02 87.54 47.00

1959 871.34 173,24 43.57 17.27

4,665.78 1,109.19 233.30 112.44

* For the years 1958 and 1959 credit has been allowed for $50.65

and $178.37, respectively. These amounts represent withholding

from wages.

FINDINGS OF FACT

General

Some of the facts have been stipulated and are so

found. The stipulation and exhibits attached thereto are

incorporated herein by this reference.

Petitioner Anne Goyne Mitchell (hereinafter some-

times referred to as Anne) and petitioner Jane Isabell

Goyne Sims (hereinafter sometimes referred to as Jane)

53

each resided at Ruston, La., at the time of the filing of

their respective petitions herein. Anne and Jane are

sisters.

The issues for determination in docket No. 6740-66

are: (1) Whether Anne, on the basis of her interest

in community property under Louisiana law, is liable

for income taxes on a one-half portion of the community

income for the taxable years 1955 through 1959, inclu-

sive, and additions to the tax thereto under sections

6651(a),’ 6653(a), and 6654; (2) whether joint and

several assessments that were void and invalid against

Anne for Federal income taxes and additions thereto

for the years 1954 through 1959, and not abated by the

respondent, prevented determination of the deficiency

herein; and (3) whether Jane (docket No. 6741-66) is

liable as Anne’s transferee for the deficiencies determined

against her.

For convenience and clarity, we shall deal with each

of the above issues separately.

Issue 1. Liability for One-half of the Community Income

FINDINGS OF FACT

On or about September 22, 1946, Anne married Em-

mett L. Mitchell, Jr. (hereinafter sometimes referred

to as Emmett). Anne and Emmett were divorced on

October 11, 1962.

During the existence of the marriage between Anne

and Emmett, all of the income realized by either party

was community income. Throughout the marriage of

Anne and Emmett, finances were a constant source of

trouble and controversy. At no time during the course

of their marriage did Anne see her husband’s paycheck

or know how much money he made. Although Anne and

Emmett had a joint bank account, and although Anne,

with some degree of risk, drew checks on this account,

She was rarely aware of the balances therein.

Sometime in or after 1952, while Anne and Emmett

were residing at Monroe, La., Emmett rented a post

1 All references herein are to the Internal Revenue Code of

1954, unless otherwise stated.

oe 7

office box and retained the only key. Subsequent to the

rental of the post office box, no mail was delivered to

the Mitchell’s home. When the Mitchells moved to Rus-

ton, La., in 1956, Emmett again rented a post office

box, and Anne was only aware of those bills and bank

statements that Emmett chose to bring home. Emmett

was financially irresponsible and Anne frequently at-

tempted to bring to his attention those obligations she

was aware of and that “needed to be taken care of in

a financial way.”

Anne was aware of her husband’s fiscal irresponsi-

bility, and repeatedly questioned him each year about

the preparation of income tax returns. She believed that

Emmett would file returns because of the consequences

if he did not, which she assumed “would be immediate,”

but she was concerned about the returns being filed on

time. Anne was led to believe that income tax returns

were filed each year, because Emmett told her about

getting help from Mr. Albritton, who was an accountant

in Farmerville, Emmett’s hometown; and securing the

additional money allegedly needed to pay the taxes. Anne

assumed not only that returns had been filed but that

her signature had been affixed thereto by her husband.

No income tax returns, however, were filed by either

Anne or Emmett for the taxable years 1954 through

1959.

During 1955 and 1956 Anne was employed as a teacher

by St. Paul’s Methodist Church, receiving as salary (her

community one-half) $1,350 and $750 respectively. Her

actual receipts in such years were $2,700 and $1,500.

As a result of Emmett’s continuing financial irrespon-

sibility, Anne and Emmett began living separate and

apart in July 1960. On or about August 4, 1961 Anne

filed suit for separation from bed and board against

Emmett, praying that, under Louisiana law, she be al-

lowed to accept the community of acquets and gains

with benefit of inventory. She was granted a separation

from bed and board a mensa et thoro, against Emmett

by default, on or about September 14, 1961. On Septem-

ber 18, 1961, she renounced the community of acquets

and gains formerly existing between herself and Em-

55

mett, and on or about October 11, 1962, she was granted

a judgment of divorce a vinculo matrimonii.

Upon the dissolution of the community of acquets and

gains between Anne and Emmett, she received neither

a distribution of community property nor a property

settlement. Respondent, in his notice of deficiency, de-

termined deficiencies against Anne for one-half of the

community income for the tax years 1955 through 1959,

and additions thereto under sections 6651(a ), 6653(a),

and 6654.

OPINION

in the case before us we are asked to decide whether

in Louisiana, a community property State, one spouse

is liable for the tax on one-half of all the income of

the community irrespective of whose efforts produced

the income for the community. In other words, in the

absence of joint returns must one Louisiana spouse re-

port one-half of the community income even though such

income was earned by the efforts of the other spouse.

We hold that each spouse in Louisiana is responsible

for tax on one-half of the community income regardless

of whose efforts produced it.

In 1930, the U.S. Supreme Court decided that the

community property laws in the States of Washington,

Arizona, Texas, and Louisiana “entitled [a husband and

wife] to file separate returns each treating one-half of

the community income as his or her respective income.” 2

Poe v. Seaborn, 282 U.S. 101 (1930) ; Goodell y. Koch,

282 U.S. 118 (1930); Hopkins v. Bacon, 282 U.S. 122

(1930); Bender v. Pfaff, 282 U.S. 127 (1930).

In United States v. Malcolm, 282 U.S. 792 ( 1931),

the Court of Appeals for the Ninth Circuit had requested

instructions from the Supreme Court on the following

questions of law:

*For almost 18 years income earned by a spouse who was

domiciled in a community property State enjoyed the tax bene-

fits of income splitting. In 1948 Congress, realizing the patent

inequities between the marital unit in a community property

State and a common-law State, amended the 1939 Internal Revenue

Code by adding what is presently sec. 6013.

56

1. Under the applicable provisions of the Peve-

nue Act of 1928 must the entire community income

of a husband and wife domiciled in California be

returned and the income tax thereon be paid by

the husband?

2. Has the wife, under §161(a) of the Civil

Code of California such an interest in the commu-

nity income that she should Separately report and

pay tax on one-half of such income?

In a per curiam opinion the Supreme Court answered

the first question “no” and answered the second question

“yes,” citing Poe v. Seaborn, supra; Goodell v. Koch,

supra; and Hopkins v. Bacon, supra.

Although Poe v. Seaborn and the related community

property cases decided in 1930 stated that a husband

and wife were entitled to file joint returns, it wasn’t

until our decision in Paul Cavanagh, 42 B.T.A. 1037

(1940), affd. 125 F. 2d 366 (C.A. 9, 1942), that it was

decided she had a duty to return one-half of the com-

munity income. In Cavanaugh, we interpreted both the

decision of United States v. Malcolm, supra, and section

22(a) of the 1934 Revenue Act (now sec. 61) to hold

that a wife in California could not, at her option, ro.

turn one-half of the income of the community, stating

at pages 1043-1044:

Gross income, as defined in section 22(a) of the

Revenue Act of 1934, 48 Stat. 680, ch. 277, includes

“income derived from * * * dealings in property,

whether real or personal, growing out of the owner-

ship or * * * interest in such property, * * * or

gains or profits and income derived from any source

whatever * * *.” Such income must be reported by

the individual to whom the statute attributes it.

Clearly, therefore, the petitioner’s wife is taxable

on one-half of the community income. She is the

owner thereof, although not entitled to present pos-

session. This appears to be the inescapable conclu-

sion to be drawn from the Supreme Court’s opinion

in the Malcolm case, supra,

57

Consequently, there is no longer the situation

whereunder the wife may at her option return one-

half of the income. Since she now must do so, it

follows that the petitioner is taxable only on the

other half of the entire community property. There-

fore, as to the second issue in this proceeding the

Board holds in favor of the petitioner.

Again in Marjorie Hunt, 22 T.C. 228 (1954), we held,

under the community property laws of California, that

a spouse was liable for taxes on her one-half of the

community income.

In the instant case we are concerned with the com-

munity property laws of Louisiana. Petitioners argue

. that: (1) Under Louisiana community property laws

the wife dces not have a sufficient interest in the com-

munity property to make her liable for tax on one-half

of its income; (2) Federal income taxes are community

debts for which the husband is liable and a wife who

renounces the community of acquets and gains is not

liable for income taxes on community property; and (3)

it would be unconstitutional to collect the community’s

taxes from a spouse who neither received community

income nor voluntarily assumed the indebtedness.

We recognize that under the Louisiana community

property system decisions may be found supporting the

proposition that a wife has only an expectancy in the

community property. See “Nature of the Wife’s Interest

During the Existence of the Community,” 25 La. L. Rev.

159, 179-180 (1964); however, since the decision of

Phillips v. Phillips, 160 La. 813, 107 So. 584 (1926),

the weight of authority in Louisiana has favored an

ownership concept. Bender y. Pfaff, supra. We deem it

proper to follow this authority. See Commissioner v.

Estate of Bosch, 387 U.S. 456 (1967).

SIn this case the Supreme Court of Louiisana said, 107 So. at

588: “The wife’s half interest in the community property is not a

mere expectancy during the marriage: * * * The title for half of

the community propery is vested in the wife the moment it is

acquired by the community * * *, even though it be acquired in the

name of only one of them.”

58

We think that the laws of Louisiana are overwhelm-

ing in their characterization of the wife’s interest as

more than a mere expectancy. The Louisiana Civil Code

provides, inter alia, that “Every marriage * * * super-

induces of right partnership or community of acquets

or gains, if there be no stipulation to the contrary” ;*

that a wife may bring an action against the heirs of

her husband for a fraudulent disposition of the common

property;* that she may petition for a separation of

property when, due to her husband’s mismanagement,

her dowry is in danger or when, because of the dis-

orderly conduct of her husband's affairs, she believes

that his estate may not be sufficient to meet her rights

and claims."

We find that petitioners’ position on this point is un-

tenable and accordingly we hold that in Louisiana a

wife has such rights, claims, and powers in the prop-

erty of the marital community as are equivalent to own-

ership, and that she is responsible for the tax on one

half of the community income.

Petitioners contend that Anne's renunciation of the

community of acquets and gains, on September 18, 1961,

exonerated her from liability for Federal income taxes.

In support of such contention they refer us to articles

2410 and 24117 of the Louisiana Civil Code; Stu ffler vy.

*La. Civ. Code Am. art. 2399 (West 1951).

Messersmith, 229 La. 495, 86 So. 2d 169 (1956).

* La, Civ, Code Ann. art. 2404 (West 1951).

pen, 231 La. 206, 91 So. 2d 12 (1956).

Messersmith vy.

Thigpen v. Thig-

* La. Civ. Code Ann. art. 2425 (West 1951). Brown & Learned

Vv. Smyth, 40 La. Ann. 325, 4 So, 300 (1888).

* Art. 2410. Exoneration of wife or

community.

Art. 2410. Both the wife and her heirs or assigns have the

Privilege of being able to exonerate themselves from the debts

contracted during the marriage, by renouncing the partnership or

community of gains.

Art. 2411. Rights of renouncing wife.

Art. 2411. The wife, who renounces, loses every sort of right

to the effects of the partnership or community of gains.

But she takes back all her effects, whether dotal or extradotal.

heirs by renunciation of

Puckett, 30 La. Ann. 811 (1878); and Brassac vy. Du-

eros, 4 Rob. 335 (1843),

These cases and statutes stand for the proposition

that a wife and her heirs or assigns may “exonerate

themselves from the debts contracted during the mar-

riage by renouncing the partnership or community of

gains.” (Emphasis supplied.)

The complete answer is that the income tax is not

a debt created by contract, Bender vy. Pfaff, 38 F. 2a

649 (C.A, 5, 1930), and further, that Anne’s renuncia-

tion came long after her liabilities for the annual in-

come taxes here in issue had attached. The wife in

Louisiana does not have an option to assume the tax

liability resulting from the income of the community.

Smith v. Donnelly, 65 F. Supp. 415, 417 (E.D. La.

1946); Saenger y, Commissioner, 69 F. 2d 683 ( C.A, 5,

1934), affirming 28 B.T.A. 377 (1933); Commissioner

v. Hyman, 135 F. 2d 49 (CA, 5, 1943), affirming 46

B.T.A. 992 (1942),

Petitioners suggest that it would be unconstitutional

to collect the community’s taxes from a spouse who nei-

ther received community property, nor voluntarily as-

sumed the indebtedness.

We are not unmindful that the Federal tax obliga-

tions of a wife in a community property State may be

greater than those of her sister in a common-law State.

But, this is not always the case for we hold only that

the wife in a community property State must account

for one-half of the community income, regardless of

whose efforts produced such income,

Over a third of a century has elapsed since the Sv-

preme Court decided Poe v. Seaborn, supra, wherein the

Court, in passing upon the constitutional aspects of

splitting community income, stated at pages 117-118:

Finally the argument is pressed upon us that the

Commissioner’s ruling will work uniformity of in-

cidence and operation of the tax in the various

states, while the view urged by the taxpayer will

make the tax fal] unevenly upon married people.

This argument cuts both ways. When it is remem-

bered that a wife’s earnings are a part of the com-

munity property equally with her husband's, it may

well seem to those who live in states where a wife’s

earnings are her own, that it would not tend to

promote uniformity to tax the husband on her earn-

ings as part of his income. The answer to such

_ argument, however, is, that the constitutional re-

quirement of uniformity is not intrinsic, but geo-

graphic. * * * [citations] And differences of state

law, which may bring a person within or without

the category designated by Congress as taxable, may

not be read into the Revenue Act to spell out a lack

of uniformity. * * *

We find no reason why the constitutional precepts of

Poe v. Seaborn, that were applicable in permitting com-

munity income to be split, should not be applicable in

requiring the spouse to report and pay her tax on one-

half of the community income.

In addition to the deficiency for one-half of the tax

on the community income, respondent determined penal-

ties against Anne under sections 6651(a) and 6653(a)

for failure to file a tax return and for failure to pay

the tax. Section 6651 (a) provides for a 5-percent pen-

alty per month of the tax due, but not in excess of 25

percent for failure to file a tax return “unless it is

shown that such failure is due to reasonable cause and

not due to willful neglect.” We do not find willful neg-

lect in the instant case; however, it is well settled that

a penalty under section 6651(a) is avoided only when

there is, in addition to the absence of willful neglect, a

reasonable cause. Charles E. Pearsall & Son, 29 B.T.A.

747, 749 (1934).

Petitioners argue that Anne had reasonable cause and

that she was “not negligent unless she was under some

affirmative duty to doubt her husband and independently

verify his statements.” We are Sympathetic to Anne’s

plight; however, we believe that she did not have rea-

sonable cause. Anne neither saw the returns nor signed

her name to them. It was certainly not reasonable sim-

ply to assume that her husband had signed her name to

61

the returns, especially we! she did not even attempt

to verify the existence of 52/4 returns. As we said in

Leo Sanders, 21 T.C. 2, 1020 (1954), affd. 225 F.

2d 629 (C.A. 10, 19g5). certiorari denied 350 U.S. 967

(1956) :

A wife required to file a return because of in-

come of her husband {!” # community property State

or who joins in a jeiMt return can not shed the

responsibility for delinquency by saying that she

relied entirely upon her husband, not a specially

qualified tax authoritY) Otherwise Congress would

be frustrated in the PUrpose behind section * * *

[6651 (a) }.

We find that Anne is a/8° liable for the penalties im-

posed under section 6653(2)- This section provides for

a 5-percent penalty on a deficiency when said deficiency,

resulting from an underp2Yment, is due either to “neg-

ligence or intentional disre&4’d of rules and regulations

(but without intent to deffaud).” T"2 penalty imposed

under this section is upon the total underpayment even

though only part of the underpayment is due to negli-

gence,* and the burden of Proving that no part of the

underpayment was due to Negligence is upon petitioner.

Terry C. Rosano, 46 T.C. 681, 688 (1966).

Anne was under a duty to make either individual or

joint income tax returns, 8¢¢s. 6012 and 6013, and to

pay a tax on her community one-half of the taxable

income shown on these réturns, secs. 1 and 2. Anne’s

failure to pay income taxes resulted from her failure

to file returns and we have found that Anne demon-

strated a lack of due care in assuming that her husband

prepared and signed her name to these putative returns.

* SEC. 6658. FAILURE To PAY TAX.

(a) NEGLIGENCE OR INTENTIONAL DISREGARD OF RULES AND

REGULATIONS WITH Respect 7° INCOME oR GIFT Taxes.—If any

part of any underpayment * * * is due to negligence or intentional

disregard of rules and regulations (but without intent to defraud),

there shall be added to the tax 49 amount equal to 5 percent of the

underpayment.

62

Anne’s conduct in failing to file income tax returns was

also responsible for her failure to pay income taxes for

the years in question. Therefore, we hold that Anne

was negligent, and is liable for the 5-percent penalty on

her share of the community income.

Respondent in his notice of deficiency determined that

Anne was liable for additions to the tax under section

6654, which provides for an addition to the tax in the

case of any underpayment of estimated tax by an indi-

vidual. This section is mandatory unless certain excep-

tions (none of which are applicable in the instant case)

relating to prior year’s taxes, or payments, are complied

with. It does not provide relief upon a showing of rea-

sonable cause, lack of willful neglect, or extenuating cir-

cumstances. Estate of Barney Ruben, 33 T.C. 1071

(1960).

Anne does not come within any of the exceptions to

section 6654 and is therefore responsible for additions

to the tax under that section.

Issue 2. Existence of a Deficiency

FINDINGS OF Fact

Emmett and Anne did not file Federal income tax

returns, either jointly or Separately, for any of the tax-

able years 1954 through 1959. Form 870, “Waiver of

Restrictions on Assessment and Collection of Deficiency

in Tax and Acceptance of Overassessment,” covering

these 6 taxable years was executed by Emmett on or

about January 11, 1961. The execution of this form by

Emmett permitted the Commissioner to make an assess-

ment without complying with the time and notice (90

day) requirements of section 6213. The Federal income

tax liabilities indicated on said Form 870 for all of the

said taxable years were determined pursuant to the

rates applicable to joint return filings. Predicated on

the Form 870 executed by Emmett, Federal income taxes

and penalties were jointly assessed on March 10, 1961,

against both Anne and Emmett for the taxable years

1954 through 1959, inclusive.

68

The March 10, 1961, assessments were made without

notice to, or the knowledge of Anne. Anne neither

granted Emmett actual or implicd consent nor authority

or power to legally bind her to the Form 870. Anne

neither acquiesced nor consented to being a participant

or partner in the Form 870; nor did she consent or ac-

quiesce to being obligate or bound by such Form 870 or

any subsequent assessments thereunder.

Respondent concedes that the above joint and several

assessments of Federal income taxes and additions to

the tax, relative to the years 1954 through 1959 were

invalid and void as against Anne.

Form 870, “Waiver of Restrictions on Assessment and

Collection of Deficiency in Tax and Acceptance of Over-

assessment,”” covering the taxable year 1954 was exe-

cuted by Anne on August 4, 1965. Predicated on such

waiver, the Federal income tax, penalties, and interest

were individually assessed against her for the taxable

year 1954 on August 16, 1965, in the amount of $550.87.

On December 30, 1966, Anne filed a claim for refund

for the above amount and on July 25, 1967, brought a

refund action in the U.S. District Court for the Western

District of Louisiana based upon her claim, which action

is still pending.

On September 27, 1967, procedures of abatement were

executed by the Internal Revenue Service with respect

to the assessment of Federal income taxes, penalties,

and interest, made on March 10, 1961, as it applied, in

entirety, to Anne for the taxable years 1955 through

1959. On the same date, procedures of abatement were

also executed by the Internal Revenue Service, with re-

spect to the aforementioned assessment as it applied to

Emmett, down to an amount which reflected the Federal

income taxes, penalties, and interest against his one-

half portion of the community income for the taxable

years 1955 through 1959, inclusive.

OPINION

Petitioners argue that no deficiency exists under sec-

tion 6211 (Definition of a Deficiency) because the re-

Some an —

64

spondent failed to abate the assessment made against

Anne on March 10, 1961, pursuant to the execution of

the waiver agreement (Form 870) executed by her hus-

band on January 11, 1961. Respondent agrees that the

assessments made on March 10, 1961, were invalid and

void as against Anne.

As we understand petitioners, it is their contention

that the void assessment must be abated by the respond-

ent under section 6404 before there can be a valid defi-

ciency under section 6211, since no deficiency can exist

if the determination of the tax due is less than the

amount previously assessed. We disagree.

As we read both the statute and the regulations pro-

mulgated under section 6211 and 6404, we find that the

Secretary or his delegate is not required to abate an

invalid and void assessment in order to assert a defi-

ciency. Of course there may be a question as to whether

an assessment is invalid and void, but in the instant

case petitioners and respondent are both in agreement

on this point. “Section 6404 does not impose a duty on

the District Director to abate improper assessments * * *,

Its thrust is permissive, not mandatory.” Poretto y.

Usry, 295 F. 2d 499, 501 (C.A. 5, 1961).

The fact that the assessment may have been valid

against Emmett is of no consequence in the instant case,

when Anne neither consented to the execution of Form

870 nor authorized Emmett to act on her behalf. Cf.

Marie A. Dolan, 44 T.C. 420 (1965).

We hold that a valid and proper determination was

made herein as against Anne.

Issue 3. Transferee Liability

FINDINGS OF FACT

Anniebel Taylor Goyne (hereinafter sometimes re-

ferred to as Anniebel), mother of Anne and Jane, died

on November 5, 1964. On December 23, 1964, Anne

conveyed all of the real estate inherited by her from

her mother, to Jane.

65

On November 14, 1964, $2,402.78 was transferred

from the account of Anniebel with the Ruston Building

& Loan Association, to Anne’s account with that same

association. On December 23, 1964, Anne withdrew

$2,676.81, the balance of her account, from the Ruston

Building & Loan Association, and transferred to her

sister, Jane, $1,721.21.

The above transfers to Jane were made without con-

sideration, and there was no agreement between Anne

and Jane for any retransfer.

On February 1, 1965, Anne executed Form 433-AB

(“Statement of Financial Condition and Other Informa-

tion”) showing assets of $2,250 and liabilities of

$1,081.20, exclusive of the deficiencies determined here-

in. A supporting statement to such Form 433-AB reads

in part:

On December 23, 1964 [I] transferred to my

sister, Mrs. Jane G. Sims, without consideration

the following:

I. My undivided one-half interest in the follow-

ing real property which was acquired by inheritance

from my mother in November, 1964:

* * * a

Value of my

one-half interest

in mother’s

succession

Description:

Total value of real property $9,550.00

II. Cash in savings account in Ruston Building

& Loan Association, Ruston, La., $1,721.21.

The foregoing assets were transferred to my sis-

ter on the recommendation of my attorney who had

just closed my mother’s succession in November,

1964, approximately one month prior to receipt on

December 19, 1964, of the Final Notice Before

Seizure for 1954 income tax.

Prior to closing my mother’s succession, I dis-

cussed with my attorney the matter of the income

66

tax liability for 1954 through 1959. He advised

that I could renounce my interest in the succession

and thus pass my interest in mother’s estate di-

rectly to my two children. However, as it had been

over two years since I was contacted by Internal

Revenue Agent, Deuel C. Smith, in regard to Sign-

ing with my former husband on his Offer in Com-

promise, and I had heard nothing since, he felt that

the matter was settled and therefore put me in

possession. Then, after I received the Notice on

December 19, 1964, he felt that to protect my in-

terest, the foregoing assets should be transferred

which would leave me in the same financial status

as if I had renounced my interest in mother’s estate.

OPINION

Respondent in his notice of deficiency to Jane, deter-

mined that she was liable as a transferee of property

from Anne for deficiencies in income taxes and the addi-

tions thereto determined against Anne and the taxable

years 1955 through 1959,

Petitioners do not contest any of the basic facts, or

Jane’s liability as a transferee, except to argue:

[Anne’s] transfer was of her separate property.

Since the liability for income taxes on the commu-

nity income was a community debt which she

[Anne] could not be required to satisfy out of her

Separate property, in view of her nonacceptance of

the community; her transfer of separate property

to Mrs. Sims cannot be said to * * * [constitute

her] a transferee.

This is the identical argument made by the petitioners

in issue 1, and we reject it for the reasons there ex-

pressed. Jane’s liability as transferee will be computed

in conformity with our holdings on the other issues.

Decisions will be entered under Rule 50.

67

DECISION

TAX COURT OF THE UNITED STATES

Filed: March 19, 1969

Docket No. 6740-66

ANNE GOYNE MITCHELL, PETITIONER

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDFNT

Pursuant to the opinion of the Court filed January

27, 1969, and incorporating herein the facts recited in

the respondent’s computation as the findings of the

Court, it is

ORDERED and DECIDED: That there are deficien-

cies and additions to the tax due from the petitioner as

follows:

Addition to Tax eae

Sec. 6651(a) Sec. 6653(a) Sec. 6654

Year Income Tax 1954 Code 1954 Code 1954 Code

1955 $ 323.00 $ 80.75 $16.15 $ —

1956 1,267.73 316.93 63.39 35.49

1957 453.00 113.25 22.65 12.68

1958 1,750.71 425.02 87.54 47.00

1959 871.34 173.24 43.57 17.27

/s/ BRUCE M. FORRESTER

Judge

Entered: Mar. 19, 1969

* * * *

It is hereby stipulated that the foregoing decision is

in accordance with the opinion of the Court and the

respondent’s computation, and that the Court may enter

this decision, without prejudice to the right of either

68

party to contest the correctness of the decision entered

herein.

(Signed) PAUL K. KIRKPATRICK, JR.

Paul K. Kirkpatrick, Jr.

Counsel for Petitioner

(Signed) RicHarD M. HAHN

Richard M. Hahn

Acting Chief Counsel

Internal Revenue Service

1957

Income Tax $ 453.00

Addition to tax (Sec. 6651(a), 1954 Code) 113.25

Addition to tax (Sec. 6653(a), 1954 Code) 22.65

Addition to tax (Sec. 6654, 1954 Code) 12.68

Liability $ 601.58

plus interest on the above liability as provided by law

from December 23, 1964, to the date of payment.

1958

Income Tax $1,700.06

Addition to tax (Sec. 6651(a), 1954 Code) 425.02

Addition to tax (Sec. 6653(a), 1954 Code) 87.54

Addition to tax (Sec. 654, 1954 Code) 47.00

Liability $2,259.62

plus interest on the above liability as provided by law

from December 28, 1964, to the date of payment.

1959

Income Tax $ 692.97

Addition to tax (Sec. 6651(a), 1954 Code) 173.24

Addition to tax (Sec. 6653(a), 1954 Code) 43.57

Addition to tax (Sec. 6654, 1954 Code) 17.27

Liability $ 927.05

69

plus interest on the above liability as provided by law

from December 23, 1964, to the date of payment.

/s/ BRUCE M. FORRESTER

Judge

Entered: Mar. 19, 1969

* os * *

It is hereby stipulated that the foregoing decision is

in accordance with the opinion of the Court and the

respondent’s computation, and that the Court may enter

this decision, without prejudice to the right of either

party to contest the correctness of the decision entered

herein.

(Signed) PAUL K. KIRKPATRICK, JR.

Paul K. Kirkpatrick, Jr.

Counsel for Petitioner

(Signed) RicHARD M. HAHN

Richard M. Hahn

Acting Chief Counsel

Internal Revenue Service

—

70

TAX COURT OF THE UNITED STATES

Docket No. 6741-66

Filed: March 19, 1969

JANE ISABELL GOYNE SIMS, PETITIONER

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

DECISION

Pursuant to the opinion of the Court filed January

27, 1969, and incorporating herein the facts recited in

the respondent’s computation as the findings of the

Court, it is

ORDERED and DECIDED: That the following state-

ment shows the liabilities due from the petitioner as

transferee of assets of Anne Goyne Mitchell, Ruston,

Louisiana, transferor, for unpaid income taxes and ad-

ditions to tax of the transferor for the taxable years

1955, 1956, 1957, 1958 and 1959:

1955

Income Tax $ 823.00

Addition to tax (Sec. 6651(a), 1954 Code) 80.75

Addition to tax (Sec, 6658(a), 1954 Code) 16.15

Liability $ 419.90

plus interest on the above liability as provided by law

from December 23, 1964, to the date of payment.

1956

Income Tax $1,267.73

Addition to tax (Sec. 6651(a), 1954 Code) 316.93

Addition to tax (Sec. 6653(a), 1954 Code) 63.39

Addition to tax (Sec. 6654, 1954 Code) 35.49

Liability $1,683.54

plus interest on the above liability as provided by law

from December 23, 1964, to the date of payment.

71

TAX COURT OF THE UNITED STATES

WASHINGTON, D.C.

Docket No. 6740-66

Filed: June 16, 1969

ANNE GOYNE MITCHELL, PETITIONER

Versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

NOTICE OF APPEAL

Notice is hereby given that Anne Goyne Mitchell here-

by appeals to the United States Court of Appeals for

the Fifth Circuit from the decision of this court entered

on the 19th of March, 1969.

(Signed) PauL K. KIRKPATRICK, JR.

Paul K. Kirkpatrick, Jr.

Hudson, Potts & Bernstein

1000 Ouachita National Bank

Building

Counsel for Anne Goyne

Mitchell

TAX COURT OF THE UNITED STATES

WASHINGTON, D.C.

Docket No. 6741-66

Filed: June 16, 1969

JANE ISABELL GOYNE SIMS, PETITIONER

versus

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

NOTICE OF APPEAL

Notice is hereby given that Jane Isabell Goyne Sims

hereby appeals to the United States Court of Appeals

for the Fifth Circuit from the decision of this court

entered on the 19th day of March, 1969.

(Signed) Paut K. KIRKPATRICK, Jr.

Paul K. Kirkpatrick, Jr.

Hudson, Potts & Bernstein

1000 Ouachita National Bank

Building

Counsel for Jane Isabell

Goyne Sims

73

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28163

ANNE GOYNE MITCHELL, PETITIONER-APPELLANT

-&,

COMMISSIONER OF INTERNAL REVENUE,

RESPONDENT-APPELLEE

JANE ISABELL GOYNE SIMS, PETITIONER-APPELLANT

vw.

COMMISSIONER OF INTERNAL REVENUE,

RESPONDENT-APPELLEE

Appeals From the Decisions of the Tax Court

of the United States (Louisiana Case)

(June 23, 1970)

Before AINSWORTH, DYER and SIMPSON, Circuit Judges

DYER, Circuit Judge: These appeals from the Tax

Court involve the question of a wife’s liability out of

her separate property for federal income taxes on com-

munity income earned when she and her husband were

residents and domiciliaries of Louisiana, a community

property state. The Tax Court held that the wife is

liable for the tax on one-half of all the community in-

come regardless of whose efforts produced the income

for the community and even though the wife did not

file a return, renounced the community and received

none of the community property upon the dissolution of

the community. The Tax Court also held the wife liable

for statutory penalties imposed by §§ 6651, 6653 and

6654 of the Internal Revenue Code of 1954.' The Court

‘Penalties under §6651(a) are imposed for failure to file a

return, under § 6653(a) for negligent failure to pay taxes that

are due, and under § 6654 for failure to file estimated tax returns

and pay the estimated taxes.

Siticinasiiininensiesisenieniiciasensivatsiiaiibdl

74

further held the transferee of the wife’s separate prop-

erty liable for the taxes under § 6901 of the Code. We

disagree on the initial question of the wife’s liability for

the taxes and therefore reverse on all issues.

Anne and Emmett Mitchell were married on Septem-

ber 22, 1946. During the taxable years in question they

lived under the Louisiana community of acquets and

gains. For the taxable years beginning January 1, 1955,

and ending on December 31, 1959, neither Mrs. Mitchell

nor her husband filed federal income tax returns. Dur-

ing 1955 and 1956 Mrs. Mitchell was employed ¢s a

teacher and received salaries of $2700 and $1500 for

the respective years. Income taxes were withheld from

this income. It was stipulated that during the years in

question all the income earned by both Mrs. Mitchell

and her husband constituted community income and the

amount of this income is not in dispute. The Tax Court

found as a matter of fact that Mrs. Mitchell did not

know of her husband’s finances and relied upon his as-

surances that their tax returns were timely filed and

their taxes properly paid. She assumed that he signed

her name to the income tax returns.

Mrs. Mitchell began living apart from her husband

in July, 1960. On March 10, 1961, the Commissioner

assessed income taxes and penalties against Mr. and

Mrs. Mitchell. It was stipulated that Mrs. Mitchell did

not receive or have knowledge of this assessment. On

September 4, 1961, Mr. and Mrs. Mitchell were judici-

ally separated and on September 18, 1961, Mrs. Mitchell

renounced the community of acquets and gains pursu-

ant to Article 2410 of the Louisiana Civil Code? Mr.

and Mrs. Mitchell were divorced on October 11, 1962.

In 1964 Mrs. Mitchell inherited an undivided interest

in her mother’s estate. On December 23, 1964, she trans-

ferred this interest to her sister, Mrs. Jane Sims, with-

out consideration. Thereafter, on September 30, 1966,

* Article 2410 provides: “Both the wife and her heirs or assigns

have the privilege of being able to exonerate themselves from

the debts contracted during the marriage, by renouncing the part-

nership or community of gains.”

75

the Cominissioner determined that additional deficiencies

existed.

The Tax Court held that under the Louisiana com-

munity property system the wife has such rights, claims

and powers in the property and income of the marital

community as are equivalent to ownership. This owner-

ship interest made Mrs. Mitchell liable for one-nalf of

the tax due on the community income for the period in -

question. The Court held that her renunciation of the

community did not affect the tax liability because it read

Article 2410 of the Louisiana Code as allowing the wife

to exonerate herself solely from contractual debts of the

community, whereas the tax liability was imposed by

law.

The Tax Court also held Mrs. Mitchell liable for the

penalties imposed by § 6651(a) of the 1954 Code for

failure to file tax returns for the years in question be-

cause she did not have reasonable cause to rely on her

husband’s assertions that he had filed the returns. Pen-

alties under § 6653(a) were also assessed because the

Tax Court held that she acted negligently in failing to

pay taxes that were due, The Tax Court further im-

posed penalties under § 6654 for failing to file estimated

tax returns and pay the estimated taxes for each of the

years 1955 through 19593

It was stipulated by both parties in the Tax Court

that if Mrs. Mitchell Were liable out of her separate

property then the transferee without consideration of

* The Court determined the total liabilities for the years in ques-

tion as follows:

Addition to tax

Year Income tax §6651(a) §6653(a) _-§ 6654

1955 $ 323.00 $ 80.75 $16.15 _

1956 1,267.73 316.98 63.39 $35.49

1957 453.00 118.25 22.65 12.68

1958 1,750.71 425.02 87.54 47.00

1959 871.34 173.24 48.57 17.27

plus interest on the above liabilities on provided by law f

cember 23, 1964, to the date of paym og y law from De-

_

76

that property would likewise be liable. The Tax Court

therefore found Mrs. Sims, the transferee, liable.

It is, of course, incumbent on us to examine Louisiana

law to determine the nature and extent of the commu-

nity interest owned by the wife because the state law

determination of this interest is binding on federal

courts in the adjudication of federal tax controversies,

Poe v. Seaborn, 1930, 282 U.S. 101, 51 S. Ct. 58, 75

L, Ed. 239; Bender v. Pfaff, 1930, 282 U.S. 127, 51 §.

Ct. 64, 75 L. Ed. 252; see also Commissioner v. Estate

of Bosch, 1967, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed.

2d 886, and Commissioner v. Hyman, 5 Cir. 1948, 185

F. 2d 49.

Under Louisiana law the wife has a prevent, vested

ownership interest in one-half of the community prop-

erty, including its income. United States Fidelity and

Guaranty Co. v. Green, 252 La. 227, 210 So. 2d 328

(1968) ; Phillips v. Phillips, 160 La. 813, 107 So. 584

(1926). Because of this vested interest in the income

the Commissioner contends that Mrs. Mitchell is liable

individually, and out of her separate property, for in-

come taxes on one-half of the community’s income. How-

ever, the bare characterization of this ownership inter-

est as vested is not determinative of the issue. Under

the law of Louisiana the wife does not own the income

in a separate capacity. She owns the income only deriva-

tively through her one-half ownership interest in the

community. It is the community which owns the income

and owes the community debts. Poe vy. Seaborn, supra;

Bender v. Pfaff, supra; Messersmith v. Messersmith, 229

La. 495, 86 So. 2d. 169 (1956).

If the community owns the income it also owes the

tax since it is axiomatic that income is taxed to the

owner thereof. Helvering vy. Horst, 1940, 311 U.S. 112,

61 S. Ct. 144, 85 L, Ed. 75. The Commissioner contends

that the liability for income taxes is not a community

debt. However, the Supreme Court of Louisiana held to

the contrary in Messersmith vy. Messersmith, supra,

where the court said: “[{A]ll sums expended for income

tax * * * must be held to be debts of the community

77

and to be payable out of community funds.” Jd. at 176.

See also Tate v. Tate, 12 So. 2d 506 (La. Ct. App. 1948).

Note, Creditor’s Rights, 25 La. L. Rev. 201 (1964). The

question then is whether we should “look through” the

community concept and hold the wife liable for a com-

munity debt because she is the owner of an interest in

the community.

The wife does not have control or management of the

community property until dissolution of the community.

Agar v. Agar, 239 La. 941, 120 So. 2d 485 (1960) and

this is true even if the husband is absent from the home.

Grandeson v. International Harvester Credit Corp., 223

La. 504, 66 So. 2d 317 (1953). During the existence of

the community the husband can alienate the property

without her consent. La. Civ. Code Article 2404; Pitre

v. Pitre, 247 La. 594, 172 So. 2d 693 (1965). As a

corollary of his almost exclusive control over the com-

munity property the nature of the wife’s interest in the

community is such that the burdens cannot, unless she

expressly binds herself, be satisfied out of her separate

property. La. Civ. Code Article 2403. It is only when

the community is dissolved and she does not renounce

the community that the nature of her interest becomes

such that it can burden her separate property. Beal v.

Ward, 13 La. App. 191, 127 So. 423, 1930. Therefore,

since income taxes on community income are community

debts, Messersmith, supra, the wife’s renunciation of the

community is not academic. Mrs. Mitchell was not at-

tempting to relieve herself of a debt which she had al-

ready incurred, as the Government argues, but was

avoiding the assumption of a liability which was the

liability of the community and which was to be acquitted

out of community funds.

Article 2403 of the Louisiana Civil Code establishes

the principle that there are separate debts and commu-

nity debts which must be acquitted out of the respective

funds:

[T]he debts contracted during the marriage enter

into the partnership or community of gains, and

must be acquitted out of the common fund, whilst

oe 9 eto a

78

the debts of both husband and wife, anterior to the

marriage, must be acquitted out of their own per-

sonal and individual effects.

App. 1960); accord, Personal Finance, Inc. v. Simms,

148 So, 2d 176 (La. Ct. App. 1962); Brock Furniture

Co. v. Carroll, 86 So. 2d 715 (La. Ct. App. 1956).

Although the community is not a taxpayer the courts

have recognized the underlying concept of the community

as an entity in tax cases. Commissi v. Chase Man-

alet,

E.D. La. 1952, 104 F, Supp. 20, affd 202 F. 2d 433,

cert, den. 346 U.S. 820 ( 1953). The Commissioner as-

the community is similar to a partnership and the “pass

through” provisions of partnership income taxation

should apply. The community of acquets and gains, is,

however, not similar to an ordinary commercial partner-

ship because the wife may renounce it and thereby ab-

solve herself of all debts of the community, retroactively.

Court said:

Such a partnership does exist in contemplation of

law, but only, we apprehend, when she accepts the

community; if she renounces it, the community is,

as to her, as though it never existed, and everything

done during the marriage in relation to the pu: -

chase or alienation of property must be considered

as done by the husband alone.

79

The Commissioner relies on those United States Su-

preme Court cases* which held that the husband is not

required to report the whole community income on his

individual return as authority that the wife is liable for

one-half of the taxes. This reliance is misplaced. Bender

and Poe did not hold that the wife was required to re-

port the income but rather that she had a sufficient in-

terest in the community income to entitle her to report

one-half of the community income. The real significance

of the finding of a vested ownership in the wife in

Bender was not to make her separately liable but to

rebut the Commissioner’s reliance there on cases such

as Lucas v. Earl, 1930, 281 U.S. 111, 50 S. Ct. 241, 74

L. Ed. 731, where the factor of who earned the income

was held determinative of who owed the tax.

The holding of Bender is consistent with Louisiana

law. Where the husband and wife are living under the

community of acquets and gains the wife may assume

the liabilities of the community and be liable for such

assumption out of her separate property. La. R.S. 9:103

(1950) ; Friendly Loans, Inc. v. Morris, 142 So. 2d 810

(La. Ct. App. 1962). But to extend Bender to require

the wife to report the income would be destructive of

the Louisiana system of community property without

any clear statutory authorization. This we refuse to do.

The case at hand is also distinguishable from those

cases cited by the Commissioner where the wife, after

having signed a return, was held liable for one-half of

the income tax. E.g., United States v. Malcolm, 1931,

282 U.S. 792, 51 S. Ct. 184, 75 L. Ed. 714; Commis-

sioner v. Hyman, 5 Cir. 1948, 185 F. 2d 49; Saenger v.

Commissioner, 5 Cir. 1934, 69 F. 2d 683. Since the

wife in those cases had signed a return she had assumed

the liability for the tax. Therefore the issue of her lia-

bility for the tax was not in dispute.

* Poe v. Seaborn, supra; Bender vy. Pfaff, supra.

5’ We are not convinced that Smith v. Donnelly, E.D. La. 1946,

65 F. Supp. 415 decided otherwise. There was no mention in

Smith of a return but the court cited Saenger and Hyman as the

only authority for its sweeping conclusion that the wife is liable

for one-half of the income tax of the community,

’

80

Mrs. Mitchell might have been held liable for the in-

come taxes if she had accepted the benefits upon the

dissolution of the community. She elected, however to

renounce the community pursuant to Article 2410 of

the Louisiana Civil Code which specifically provides that

such renunciation exonerates her from all “debts con-

tracted during the marriage.” We are not persuaded by

the Commissioner’s assertion that the term “debts con-

tracted during the marriage” should be limited to debts

created by contract. In discussing the term “debts con-

tracted” Planiol, 3 Civil Law Treatise, Part 1, § 1086

(1959) would read the term to mean debts incurred by

any means, whether contract, tort or statute. This in-

terpretation of the term is more in keeping with the

purpose of the renunciation provision—to protect the

wife’s separate property from onerous debts of the com-

munity which the husband incurred and did not satisfy,

factors over which the wife had no control.

Under Louisiana law, absent the willingness of the

husband to divulge to the wife information concerning

the financial status and affairs of the community, she

has no way of knowing nor means to compel him to

inform her of the community’s assets, liabilities or in-

come. She could neither prepare a return showing the

community income nor pay the tax. She has no power

to guarantee that the community will be solvent enough

to satisfy the tax liability. As a result, if she is held

* Article 2404 of the Louisiana Civil Code requires that in order

for the wife to have an action against the-husband for fraudulent

disposition of the community assets said disposition must be

made with an “intent to injure the wife.” As the United States

Supreme Court pointed out in Fernandez vy. Wiener, 1945, 826 USS.

340, 349, n. 7, 66 S. Ct. 178, 90 L. Ed. 116: “Where the husband

has aliened some part of the community in fraud of his wife's

rights, she or those representing her have an action for reim-

bursement against the husband or his representatives upon the

termination of the community, but not before, Guice v. Lawrence,

2 La. Ann, 226, 228. The fraud required for an action of this kind

seemingly must be intentional and the motive for the transaction.”

[Emphasis supplied.]

See also Thigpen v. Thigpen, 281 La. 206, 91 So. 2d 12 (1956).

Although the wife may obtain a judicial separation of property

81

liable for the income taxes, she may have no property

with which to satisfy the debt unless the community is

dissolved in a solvent state, a factor over which she has

no control. Even if the community is solvent it is im-

possible for the wife to reach its assets until its dissolu-

tion because under § 2403 of the La. Civ. Code a sepa-

rate debt (which is what the Commissioner is asserting

against Mrs. Mitchell) may not be acquitted out of the

community fund. Thus, as pointed out in U.S. v. Rob-

bins, 1926, 269 U.S. 315, 328, 46 S. Ct. 148, 70 L. Ed.

285, “(T]he fund taxed, while liable to be taken for his

debts, is not liable to be taken for the wife’s * * * so

that the remedy for her failure to pay might be hard

to find.” If Mrs. Mitchell had not fortuitously inherited

property from her mother she would not have obtained

any assets with which to satisfy the tax liability and

the problem recognized in Robbins would have been real

—Mrs. Mitchell would be liable for taxes for which she

would be powerless to obtain the funds to pay.

Our holding does not leave the Commissioner without

recourse. Under Louisiana law the husband is liable for

the community debts that may be satisfied both out of

the community and out of his separate property. Poin-

dexter v. Louisiana & A, Ry. Co., 170 La. 521, 128 So.

297 (1930); Rouchon v. Rocamora, 84 So. 2d 873 (La.

Ct. App. 1956) ; Gosserand v. Monteleone, 164 La. 397,

118 So. 889 (1927). The rationale for this liability is

not that the husband’s ownership interest in the com-

munity should subject him to such liability but rather

that as head and master of the community he should be

liable for the debts he has incurred with respect to com-

munity property, and that it would be inequitable to re

quire the creditor to distinguish between the community

property and the husband’s seperate property. Note,

Creditor’s Rights, 25 La. L. Rev. 201 (1964).

without dissolution of the marriage this remedy is difficult to ob-

tain and somewhat illusory because the wife must show prior

mismanagement and thus the funds may have already been dis-

sipated.

82

The Commissioner’s contention that Mrs, Mitchell in.

curred the statutory penalties under §§ 6651, 6653 and

6654 of the Code fails because she was under no duty

to file a return under § 6012 of the Code since she had

no separate income.

Since Mrs. Mitchell owes no tax obviously her trans-

feree, Mrs, Jane Sims, does not either,

Reversed.

SIMPSON, Circuit Judge, dissenting:

I respectfully dissent.

I would affirm the Tax Court upon the basis of its

opinion, reported at 51 T.C. No. 62.

83

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1969

No. 28163

T.C. Docket Nos. 6740-66 and 6741-66

ANNE GOYNE MITCHELL, PETITIONER-APPELLANT

v.

COMMISSIONER OF INTERNAL REVENUE,

RESPONDENT-APPELLEE

JANE ISABELL GOYNE SIMS, PETITiONER-APPELLANT

Vv.

COMMISSIONER OF INTERNAL REVENUE,

RESPONDENT-APPELLEE

Appeals From the Decisions of the Tax Court

of the United States (Louisiana Case)

Before AINSWORTH, DYER and SIMPSON, Circuit Judges

JUDGMENT

This cause came on to be heard on the transcript of

the record of the Tax Court of the United States, and

was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the decisions

of the said Tax Court in this cause be, and the same

are hereby reversed.

It is further ordered that respondent-appellee pay to

petitioners-appellants, the costs on appeal to be taxed

by the Clerk of this Court.

SIMPSON, Circuit Judge, dissenting.

Issued as Mandate: June 23, 1970.

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87

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Docket No. 28,154

[Caption Omitted]

RELEVANT DOCKET ENTRIES

Date Filings & Proceedings

1969

July 18 Docket Cause, Etc.

* * * *

August 26 Original Brief on Behalf of Plaintiff-Appellant,

Mrs. Frances Angello, Widow of Jack Sparacio

(M).

* * * *

September 26 Brief for the Appellee ( Intervenor-Appellee-U.S.A. )

(P).

_ * _ o

December 5 Assigned for January 15, 1970 at New Orleens.

1970

January 15 Entg. Argument & Submission Before Hons. Ains-

worth, Dyer & Simpson, CJs.

June 22 Reversed “Per Dyer, C.J.” Judge Simpson Dissent-

ing

July 6 Ext. to 7/31/70—Petition for Rehearing. (Also

Filed In No. 28168)

August 3 Fig. Letter of Appellee confirming that no petition

for rehearing will be filed.

August 3 Fig. Motion of Appellee for Stay of Mandate.

Granted to 9/20/70—REW, 8/11

September 22 Letter to S.C. Extending the time for filing Certio-

rari to 10/5/70.

October 9 Fig. Notice (PC) of filing petition for certiorari.

88

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

Civil Acticn No. 66-884

Section A

(Filed: Dec. 29, 1966)

MRS. FRANCES ANGELLO, WIDOW OF JACK SPARACIO

versus

METROPOLITAN LIFE INSURANCE COMPANY, and

UNITED STATES OF AMERICA

PETITION FOR REMOVAL FROM STATE COURT

The petition of the United States of America, through

Louis C. LaCour, United States Attorney for the Eastern

District of Louisiana, with respect represents that:

1. This removal is based on Section 1441 of Title 28,

United States Code. The United States District Court

has original jurisdiction of this matter under Section

1346(e) of Title 28, United States Code as amended by

Section 202(a), Federal Tax Lien Act of 1966.

2. The original action entitled, “Mrs. Frances Angello,

widow of Jack Sparacio v. Metropolitan Life Insurance

Company, Et Al.,” No. 456-928 of the docket of the

Civil District Court for the Parish of Orleans, State of

Louisiana, is a suit against the United States of Amer-

ica, wherein the plaintiff seeks to recover the proceeds of

her deceased husband’s insurance policy No. 620965308E1

issued by the Metropolitan Life Insurance Company, who

has refused payment because your petitioner, acting

through the District Director of Internal Revenue Serv-

ice, served upon the Metropolitan Life Insurance Com-

pany a Notice of Tax Lien.

3. There exists the issue as to whether the United

States of America or the plaintiff, Mrs. Frances Angello,

widow of Jack Sparacio, has the right to collect the

proceeds of policy No. 620965303E1.

89

4, This case is removable under Section 1446(b) of

Title 28, United States Code.

5. That under Section 1446(d) of Title 28, United

States Code, no bond is required of the United States

of America.

6. A copy of plaintiff’s original petition served upon

the United States of America, via mail, on November 30,

1966, being the only pleading served upon the United

States of America, is attached hereto and filed herewith.

WHEREFORE, petitioner prays that this action be

removed from the Civil District Court for the Parish of

Orleans, State of Louisiana, to the United States District

Court for the Eastern District of Louisiana, New Orleans

Division.

Louis C. LACour

United States Attorney

By /s/ Ernest N. Morial

ERNEST N. MOoriAL

Assistant United States

Attorney

418 Royal Street, Room 407

New Orleans, Louisiana 70130

Telephone: 527-2491

PR REE a CEL Te ERE

CIVIL DISTRICT COURT

IN AND FOR PARISH OF ORLEANS

STATE OF LOUISIANA

DIVISION OF LOUISIANA

No.

Docket No.

Mrs. FRANCES ANGELLO, WIDOW OF JACK SPARACIO

va.

METROPOLITAN LIFE INSURANCE COMPANY, ET AL

Filed: , 1966

Deputy Clerk

TO THE HONORABLE, THE JUDGES OF THE CIVIL

DISTRICT COURT IN AND FOR THE PARISH OF

ORLEANS, STATE OF LOUISIANA:

The petition of Mrs, Frances Angello, widow of Jack

Sparacio, a person of the full age of majority and a resi-

dent of the Parish of Orleans, State of Louisiana, with

respect represents:

I,

That your petitioner is the beneficiary under Policy

No, 620 965 303 E1 issued by Metropolitan Life Insur-

ance Company, a foreign insurance company authorized

to do and doing business in the State of Louisiana on

the life of Jack Sparacio, who died on March 11, 1966.

Il.

Following the death of Jack Sparacio, petitioner’s hus-

band, your petitioner, who is the named beneficiary on

said policy of life insurance, completed all the necessary

forms and filed same with defendant, Metropolitan Life

Insurance Company, in order to collect the proceeds due

her under the policy.

—

91

Ill.

On April 13, 1966, defendant, Metropolitan Life In-

surance Company acknowledged to petitioner that the

amount of NINETEEN HUNDRED THIRTEEN AND

88/100 ($1,913.88) DOLLARS was payable to petitioner,

that all of the requirements had been met by petitioner

in order to collect the proceeds due her under the policy,

but that a notice of lien and notice of levy had been

served on Metropolitan Life Insurance Company by the

Internal Revenue Service of the U. S. Government and

for this reason, defendant, Metropolitan Life Insurance

Company has refused to pay to petitioner the amount

due her under the policy.

IV.

That no tax is due the U. S. Government by your

petitioner; any lien filed by the U. S, Government would

be for taxes due by Jack Sparacio and not due by your

petitioner; accordingly, the United States is not entitled

to a lien or levy on the proceeds due petitioner under

this policy. That the United States should be made a

party defendant to these proceedings so that your peti-

tioner can secure from this Court judgment ordering

Metropolitan Life Insurance Company to pay over to

petitioner the proceeds due her under the policy notwith-

standing the notice of lien and notice of levy filed and

served against defendant, Metropolitan Life Insurance

Company by the defendant, United States through the

Internal Revenue Service.

WHEREFORE, petitioner prays that the defendants,

Metropolitan Life Insurance Company and United States

Internal Revenue Service be duly cited to appear and

answer this petition, that they be served with copies of

same, and after all legal delays and due proceedings had,

there be judgment herein in favor of petitioner, Mrs.

Frances Angello, widow of Jack Sparacio, and against

defendants, Metropolitan Life Insurance Company and

United States Internal Revenue Service ordering Metro-

politan Life Insurance Company to pay over to your

92

petitioner, Mrs. Frances Angello, widow of Jack Spa-

racio, the entire proceeds due her under Policy No.

620 965 303 El on the life of Jack Sparacio, deceased.

And for all general and equitable relief.

REUTER, REUTER & SCHOTT

Attorneys for

Mrs, Frances Angello,

widow of Jack Sparacio

1607 National Bank of

Commerce Bldg. |

New Orleans, Louisiana 70112

By: /s/ Patrick M. Schott

PATRICK M. ScHoTT

Trial Attorney

VERIFICATION

Ernest N. Morial, being duly sworn, did depose and

say that he is an Assistant United States Attorney; that

he prepared and read the above and foregoing Petition

for Removal and that the allegations contained therein

are true and correct to the best of his knowledge, infor-

mation and belief.

/s/ Ernest N. Morial

ERNEST N. MorIAL

Assistant United States

Attorney

Sworn to and subscribed this

28th of December, 1966.

/s/ Gene S. Palmisano

Notary Public

—_

93

MOTION TO INTERVENE

{Number and Title Omitted]

[Filed: May 8, 1967]

The United States of America moves for leave to in-

tervene herein in order to assert the claim set forth in

the complaint, of which a copy is hereto attached, on

the ground that the United States of America has a tax

lien against such property and rights to property sub-

ject to this action as provided for in Federal Rules of

Civil Procedure Rule 24(a) (2).

Louis C. LaCour

United States Attorney

By /s/ Ernest N. Morial

ERNEST N. MORIAL

Assistant United States

Attorney

500 St. Louis Street (527-2921)

New Orleans, Louisiana 70130

- - -000- - -

94

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

Civil Action No. 66-884

Section A

\Filed: May 8, 1967]

MRS, FRANCES ANGELLO, WIDOW OF JACK SPARACIO,

PLAINTIFF

vw.

METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT

vw.

UNITED STATES OF AMERICA, INTERVENOR

PETITION IN INTERVENTION

The C © ’s permission having been obtained, the

United Staw., of America, intervenor herein, by its at-

torney, Louis C. LaCour, United States Attorney for

the Eastern District of Louisiana, complains and alleges:

I

The United States of America intervenes herein to

enforce its tax liens against such property and rights

to property subject to this action.

II

Intervention by the United States of America is com-

menced under the authorization of the Chief Counsel,

Internal Revenue Service, a delegate of the Secretary of

the Treasury, and at the direction of the Attorney Gen-

eral of the United States pursuant to Section 7401 of

the Internal Revenue Code of 1954.

III

On February 19, 1965, a delegate of the Secretary of

the Treasury made assessments against the plaintiff-tax-

95

payer, Frances Sparacio (now, Frances Angello), for

her federal income tax liabilities for the years 1959,

1960 and 1961 in amounts totaling $12,239.27.

IV

Notice of the foregoing assessments and demand for

payment was made in accordance with law upon Frances

Sparacio (now Frances Angello) on February 19, 1965.

V

A “Notice of Federal Tax Lien” (Treasury Depart-

ment Form 668) reflecting the foregoing liabilities was

filed in accordance with law with the Recorder of Mort-

gages, Parish of Orleans, New Orleans, Louisiana, on

April 138, 1965.

VI

The taxpayer-plaintiff, Frances A. Sparacio (now

Frances Angello) has refused and neglected to pay all

of the foregoing liabilities so that after certain admin-

istrative adjustments, she is presently indebted to the

United States for income tax liabilities for the years

1959, 1960 and 1961 in the total amount of $3,211.06,

plus interest thereon as provided by law.

VII

On May 14, 1965, a delegate of the Secretary of the

Treasury caused to be served on the Louisiana Tax Clerk

a Notice of Levy (Treasury Department Form 668-A),

which had the effect of notifying the Metropolitan Life

Insurance Company of the income tax liabilities of the

plaintiff-taxpayer.

WHEREFORE, the United States of America prays:

1. That this Court adjudicate the respective rights of

all parties heretofore with respect to the property which

is the subject of this action.

2. That this Court determine that the plaintiff-tax-

payer is indebted to the United States of America in

the amounts of $3,211.06, plus interest thereon as pro-

vided by law.

96

3. That this Court order, adjudge and decree that

the indebtedness of the plaintiff-taxpayer is secured by

federal tax liens in favor of the United States and that

such liens attach to her rights in the subject property.

4. That the federal tax liens here above set forth be

foreclosed upon the proceeds of the insurance policy

which is the subject of this action.

5. That the Court render such other and further re-

lief as is just and proper in the premises.

Louris C, LaCour

United States Attorney

By /s/ Ernest N. Morial

ERNEST N. MOoRIAL

Assistant United States

Attorney

- = -000- - -

MOTION TO DIsMIss

[Number and Title Omitted]

(Filed: May 8, 1967]

The defendant, United States of America, by and

through its attorney, Louis C. LaCour, United States

Attorney for the Eastern District of Louisiana, respect-

fully moves this Court to dismiss this action on the

ground that it: (1) seeks declaratory judgment with

respect to federal taxes; and, (2) inferentially seeks to

enjoin the collection of federal taxes, which causes are

barred by statute.

Louis C, LaCour

United States Attorney

By /s/ Ernest N. Morial

ERNEST N. MorIAL

Assistant United States

Attorney

---000---

97

AFFIDAVIT

[Number and Title Omitted]

STATE OF LOUISIANA

PARISH OF ORLEANS

Before me, the undersigned authority, personally came

and appeared Ernest N. Morial, Assistant United States

Attorney for the Eastern District of Louisiana, who,

after being duly sworn, did depose and say:

That to the best of his knowledge, information, «»

belief, and his files so reflect, the plaintiff herein,

Frances Angello, is indebted to the United States of

America for unpaid income taxes in the amount of

$3,211.06, plus interest and that the attached exhibits

(Notice of Levy and Notice of Federal Tax Lien) show

that these documents were executed with respect to the

tax liabilities of Frances Sparacio (Now Angello).

/s/ Ernest N. Morial

ERNEST N. MORIAL

Assistant United States

Attorney

Sworn to and subscribed before

me this 8 day of May, 1967.

/s/ Harry F. Connick

Notary Public

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2 en po RS cae f lien sholl not be valid with respect fo o security, as-

UNITED STATES ce a “If ony person lioble to poy any tox neglects or defined in porograph (2) of this subsection, as -

& a mae - refuses to poy the some ofter demond, the amount against any mortgagee, pledgee, or purchaser of such

; Mey eS Sat | c ‘ , . lifcluding ony interest, additional amount, addition security, for an adequate and full consideration in

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a See ae aay? pe Pies "= thet moy acerve in eddition thereto) sholl be a lien goge, pledge, or purchase such mortgagee, pledgee,

Pe. | WS. OS . in fovor of the United Stotes upon all property ond or purchoser is without notice or knowledge of the

Se ea ie = pee cae rights to property, whether real or personal, belong- existence of such lien.

Sines eS A a ie 3 Ing to such person, ; ; : oP : t

; a Se “3 eo merge (2) Definition of Security.--As used In this “.

er oer = ’ ' a . se. 6322. PERICD OF LIEN. subsection, the term “security” means any bond, =

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' ee . - Se a a, , Unless onother dote ts specificolly fixed by indebtedness, issued by any corporation {including ~, .

- et es: Bid = ’ low, the lien imposed by section 6321 sholl arise at one issued by a government or political subdivision is.

F a oo rae ! ee the time the assessment is made ond shall continue thereof), with interest coupons or in registered form, -

‘ a “ “ until the liability for the omount so ossessed is satis- shore of stock, voting trust certificate, or any certifi. a9

( , an ar Tek & fied or becomes unenforceable by reason of lapse of cote vf interest or porticipotion in, certificate of ~

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ls ak. eee, aid ae oe : cate for, or warrant or right to subscribe to or pure os

Gees a ene amare "SEC. 6323. VALIDITY AGAINST MORTGAGEES, chase, any of the foregoing; Ne NF

NOTICE OF T AX LIEN xc: ; - PLEDGEES, PURCHASERS, AND JUDGMENT - baal deal w 4

‘ pak . 2 CREDITORS, ail ce : ‘. - y 2

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; — eo ae aa ING LIEN.--If @ notice of lien hos been filed under ~..

re a ars ee OE ars a: ag! +3 ‘fa) INVALIDITY OF LIEN WITHOUT NOTICE... subsection (a), the Secretary or his delegcte is au- a:

* F gtiscae oe ae ee ee ie ee RS TEE Except as otherwise Provided in subsection (c), the thorized to provide by rules or regulations the ex- =

. ; iia ee ont ~| : lien imposed by section 6321 shall not be valid as tent to which, ond the conditions under which, Infore >

, ee Fe lee Newas Er eee A ogainst any mortgocee, pledgee, purchoser, or Judg- mation os to the omount of the outstanding obliga- - >

Sate » eS ee ae ve ment creditor until notice thereof hos been filed by tion secured by the lien may be disclosed. v8 8 “-

i _ e © * hie Pen eel the Secretory or his delegate— -.. 1. eer ¥ Avig ©

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led thi Soe x : len f office designated by the low of the State or Territory . A .. ame: :3. =

i this ay o : ' In-which the property subject to the lien is situated, : <i ee ae

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a / ens ee aie x, , (2) With Clerk of District Court.--In the office t0 any internal aS Tae if- ! a.

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ar, « art Ps nia — ne, Ley g cou © esa i? Gey — > co (1) Licbility Sotisfied or Unenforceable.--The ‘~

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101

HEARING ON MOTION OF UNITED STATES TO INTERVENE

AND MOTION OF UNITED STATES TO DISMISS AND ORDER

GRANTING BOTH MOTIONS

MINUTE ENTRY: CHRISTENBERRY, J. June 7, 1967

{Number and Title Omitted]

This cause came on this day for hearing on motion of

United States to intervene and motion of United States

i> dened

PRESENT :

Patrick M. Schott, Esq.

Attorney for Plaintiff

Ernest N. Morial, Esq.

Assistant U. S. Attorney

IT IS ORDERED that the motion of United States to

intervene be, and it is hereby, GRANTED.

IT IS FURTHER ORDERED that motion of United

Siaies to dismiss be, and it is hereby, GRANTED.

ANSWER TO PETITION IN INTERVENTION

{Number and Title Omitted]

{Filed: Jan. 2, 1968]

Now into Court comes defendant in intervention, Mrs.

Frances Angello, widow of Jack Sparacio, hereinafter

referred to as “Mrs. Sparacio” to make the following

defenses to the petition in intervention filed by the

United States of America herein.

102

FIRST DEFENSE

The property on which the United States is seeking

to enforce a lien consists of a sum of money owed by

Metropolitan Life Insurance Company on an insurance

policy on tlie life of Mrs. Sparacio’s husband and in

which Mrs. Sparacio was the beneficiary. These funds

are therefore the property of Mrs. Sparacio and no one

else’s.

SECOND DEFENSE

The assessment made against Mrs. Sparacio as set out

in paragraph III of the petition in intervention were

made wrongfully, erroneously and illegally against Mrs.

Sparacio for the following reasons:

1. The tax liabilities were Mrs. Sparacio’s husband's

and not hers and should have been based upon separate

tax returns signed and filed by him alone.

2. The Internal Revenue Service secured Mrs. Spa-

racio’s signature on joint returns by meai.. of such rep-

resentations and under such circumstances that she was

misled, made the victim of her own ignorance of the law

and prevented from having competent legal advice as

warranted by the facts and circumstances of the case.

8. The tax liabilities could not have been assessed

against Mrs. Sparacio without the aforesaid wrongful

procurement of her signature on joint returns for the

years set out in paragraph III of the petition.

THIRD DEFENSE

Mrs. Sparacio is justified under the facts and law ap-

plicable thereto in her refusal to pay these tax liabilities

which are her husband’s and not hers.

WHEREFORE, Mrs. Sparacio prays:

1. That the Court dismiss the claim of the United

States as to the life insurance proceeds.

2. That the lien of the United States on the proceeds

of the insurance policy be cancelled.

Pt le eh!

3

:

;

i

103

3. That the defendant in intervention be awarded all

of said proceeds due by the Metropolitan Life Insurance

Company under the said insurance policy.

4. For all general and equitable relief.

REUTER. KEUTER & SCHOTT

Attorneys for defendant in

intervention

1607 N.B.C. Building

New Orleans, La. 70112

By /s/ Patrick M. Schott

PATRICK M. SCHOTT

Trial Atty.

- - -000- - -

INTERROGATORIES

[Number and Title Omitted]

{Filed: April 30, 1968]

In accordance with the provisions of Rule 33 of the

Federal Rules of Civil Procedure, the United States of

America, intervenor, by its attorney, Louis C. LaCour,

United States Attorney for the Eastern District of Lou-

isiana, requires the plaintiff, Mrs. Frances Angello, to

answer the following interrogatories separately, fully, in

writing, under oath, and signed within fifteen (15) days

of service hereof:

1. If you do not admit each and every statement con-

tained in the Request for Admissions, Nos. 1 through

12, inclusive, filed herein, explain and specify in detail

in what respect any statement not admitted is believed

to be untrue, and what you believe to be the correct

facts in this regard.

2. If you do not admit each and every statement con-

tained in the Request for Admissions, Nos. 1 through

12, inclusive, filed herein, list the documents or records

104

of any nature which Support or tend to support your

denial of any such statement. In answering this inter.

rogatory, you are to include the names and addresses of

© person or persons having possession, custody or con- |

trol of such documents or records. oe

3. If you do not admit each and every statement con-

tained in the Request for Admissions, Nos. 1 through

12, inclusive, filed herein, list the names and addresses

of any person or persons who have knowledge of any

fact or facts which Support or tend to support your de

nial of any such statement.

4. State the amount and source of your income for

the year 1959.

5. State the source and amount of your income for

the year 1960.

6. State the source and amount of your income for

the year 1961.

Louis C. LaCour

United States Attorney

By /s/ James Carriere

Assistant United States

Attorney

---000- - -

REQUEST FOR ADMISSIONS

(Number and Title Omitted]

(Filed: April 30, 1968]

Pursuant to the provisions of Rule 36, Federal Rules

of Civil Procedure, the United States of America, by its

attorney, Louis C. LaCour, United States Attorney for

the Eastern District of Louisiana, requests the plain-

tiff, Mrs. Frances Angello, within ten ( 10) days after

service of this request, to make the following admissions

for the purpose of this action only:

1. That during the years 1959, 1960 and 1961, you

were married to Jack Sparacio.

2. That during the years 1959, 1960 and 1961, you

resided in the State of Louisiana.

105

8. That you filed no income tax return for the year

1959.

4. That you filed no income tax return for the year

1960.

5. That you filed no income tax return for the year

1961.

6. That you have no books or records relating to the

business operations and income of your deceased hus-

band, Jack Sparacio, for the years 1959, 1960 and 1961.

7. That you have no personal knowledge of any facts

relating to the business operations and income of your

deceased husband, Jack Sparacio, for the years 1959,

1960 and 1961.

8. That on February 19, 1965, the District Director

of Internal Revenue made assessments against you for

your federal income tax liabilities for the years 1959,

1960 and 1961, in the total amount of $12,239.27,

9. That notice of the foregoing assessments and de-

mand for payment were made upon you on February 19,

1965.

10. That a Notice of Federal Tax Lien ( Treasury

Department Form 668) reflecting the foregoing liabili-

ties was filed with the Recorder of Mortgages, Parish of

Orleans, New Orleans, Louisiana, on April 18, 1965.

11. That you have made no payments to the Internal

Revenue with respect to the aforementioned liabilities.

12. That after certain administrative adjustments,

you #e currently indebted to the United States of Amer-

ica for federal] income tax liabilities for the years 1959,

1960 and 1961 in amounts totaling $3,211.06, plus statu-

tory interest.

Louis C. LACour

United States Attorney

By: /s/ James Carriere

Assistant United States

Attorney

---000-- -

106

MOTION FOR SUMMARY JUDGMENT ON BEHALF OF

DEFENDANT, METROPOLITAN LIFE INSURANCE COMPANY

{Number and Title Omitted]

[Filed: May 2, 1969]

Defendant, Metropolitan Life Insurance Company, ap-

pearing herein through undersigned counsel, moves this

Court for Summary Judgment in its favor and suggests

to the Court that mover holds certain insurance proceeds

in the sum of ONE THOUSAND NINE HUNDRED

THIRTEEN AND 88/100 ($1,913.88) DOLLARS as to

which the other parties to these proceedings, Mrs.

Frances Angello, widow of Jack Sparacio and United

States of America, have each asserted a claim against

mover and that mover holds such proceeds merely as a

stakeholder having no interest in the said proceeds and

that mover desires to deposit the said proceeds into the

Registry of this Honorable Court in order that the other

parties to these proceedings may assert their respective

claims against the said proceeds; mover, therefore, asks

that it be granted leave from this Honorable Court to

deposit the sum of ONE THOUSAND NINE HUNDRED

THIRTEEN AND 88/100 ($1,913.88) DOLLARS into

the Registry of this Court and that there be Summary

Judgment entered in favor of mover, Metropolitan Life

Insurance Company, dismissing all claims being asserted

against mover upon mover’s making the said deposit of

ONE THOUSAND NINE HUNDRED THIRTEEN

AND 88/100 ($1,913.88) DOLLARS into the Registry

of this Court and that, upon the making of the said

deposit, mover be recognized as having discharged in

full all of its obligations and duties under Policy No.

620-965-303 M1 issued by mover; mover further sug-

gests to the Court that an analysis of the following docu-

ments, either attached to this Motion or already part of

the record, will disclose that there is no genuine issue in

respect to any material fact and that mover is entitled,

as a matter of law, to all relief demanded:

f

eran eet

ry PS * 2 oP oy wee Pree

ENE NNT) Coane ait gal tpt SEPT MEMS IIe Pew Loy i IETS RIE INS fr Neh pena gy 2 IT SA PRES IE Tien S

107

1. The pleadings of all parties heretofore filed in this

proceeding ;

2. The statement of those facts not in issue required

by Rule 4E of the Local Rules of the United States

District Court for the Eastern District of Louisi-

ana, New Orleans Division.

/s/ Phelps, Dunbar, Marks,

Claverie & Sims

PHELPS, DUNBAR, MARKS,

CLAVERIE & SIMS

Attorneys for Metropotitan

Life Insurance Company

1300 Hibernia Bank Building

New Orleans, Louisiana 70112

Telephone No, 529-1311

/s/ Richard C. Brown

RICHARD C. BROWN

Trial Attorney

ORDER

Considering that all counsel of record have approved

and submitted without objection the above and foregoing

Motion for Summary Judgment of defendant, Metropoli-

tan Life Insurance Company;

Let the above and foregoing Motion for Summary

Judgment of defendant, Metropolitan Life Insurance

Company, be granted upon defendant, Metropolitan Life

Insurance Company, depositing the sum of ONE THOU-

SAND NINE HUNDRED THIRTEEN AND 88/100

($1,913.88) DOLLARS into the Registry of this Court,

— sum to be held subject to the further orders of this

urt.

New Orleans, Louisiana, this 6th day of May, 1968.

/s/ Herbert W. Christenberry

United States District Judge

---000-- -

ANSWERS TO INTERROGATORIES

{Number and Title Omitted]

[Filed: June 14, 1968]

1. The undersigned does not admit Request No. 12

and the explanation and detailed specification as to why

can be found in her pleadings and in the affidavit which

she has filed in this record in support of the memoran-

dum in opposition to various motions filed by the United

S

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