This appeal is from a decision of the Tax Court that the appellant is jointly and severally liable with her ex-husband for income taxes on unreported income in 1963, 1964, and 1965, under authority of section 6013(d) (3) of the Internal Revenue Code of 1954, 26 U.S.C. § 6013 (d) (3), which unequivocally provides that "if a joint return is made, * * * the liability with respect to the tax shall be joint and several." It is undisputed that the appellant's husband embezzled more than $100,000 over a three year period which constituted taxable, but unreported income. Appellant had no knowledge of her husband's activities and did not derive any benefit from the embezzled funds. However, she did sign the joint tax returns with her husband for the tax years in question. The Tax Court found that the appellant had signed the joint tax returns in these years voluntarily, and while recognizing that the result mandated by the statute was harsh, entered judgment in favor of the Commissioner. Huelsman v. Commissioner, 27 T.C.M. 436 (1968). On appeal, this court was dissatisfied with the "skimpy record" in support of the finding that appellant had voluntarily signed the returns, and remanded the case for further proceedings on that issue. Huelsman v. Commissioner, 416 F.2d 477 (6th Cir. 1969). On remand, the Tax Court held further hearings and made supplemental findings of fact which again found the signatures to have been voluntarily executed. Wissing (formerly Huelsman v. Commissioner, 54 T.C. 1428 (1970). Taxpayer again appeals from this decision.
Subsequent to the last decision of the Tax Court in this cause, Congress endeavored to remedy the harshness of section
The omission, however, for 1964 was less than 25 per cent of the gross income stated in the return and applying the recently enacted statute, the appellant is not absolved from tax liability for the deficiencies assessed for the year 1964.
Appellant further argues that the case should be remanded to enable her to challenge the disallowance of interest and charitable contribution deductions in tax year 1964. We think this contention is without merit, since appellant has had ample opportunity to raise these contentions in the previous proceedings before the Tax Court and chose not to do so.
It is therefore ordered that the decision of the Tax Court be vacated; that judgment be entered in favor of the appellant and against the government with respect to the deficiencies asserted for the tax years 1963 and 1965; and that judgment be entered in favor of the government and against appellant with respect to the deficiencies in tax year 1964.