                  T.C. Summary Opinion 2010-59



                     UNITED STATES TAX COURT



                  INDRIT ILJAZI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11039-09S.              Filed May 6, 2010.



     Carlton Malben Smith, for petitioner.

     Theresa G. McQueeney, for respondent.



     PANUTHOS, Chief Special Trial Judge:    This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect when the petition was filed.   Pursuant to

section 7463(b), the decision to be entered is not reviewable by

any other court, and this opinion shall not be treated as

precedent for any other case.   Unless otherwise indicated, all
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subsequent section references are to the Internal Revenue Code in

effect at relevant times.

     This proceeding was commenced under section 6015 for review

of respondent’s determination that petitioner is not entitled to

relief from joint and several liability with respect to the

unpaid tax liability reported on the 2002 joint return petitioner

filed with Mary Sue Bacon (Ms. Bacon).    The sole issue for

decision is whether petitioner is entitled to relief under

section 6015(f) for the 2002 tax liability.    Respondent concedes

petitioner is entitled to the claimed relief, except to the

extent that petitioner’s claim is time barred.

                             Background

     This case was submitted fully stipulated.    All stipulated

facts are found accordingly, and the attached exhibits are

incorporated by reference.   Petitioner resided in New York when

he filed the petition herein.

     Petitioner and Ms. Bacon reported income tax due of $29,360

and submitted a $100 payment with their timely filed 2002 joint

income tax return.   On November 1, 2003, respondent sent

petitioner by certified mail a final notice of intent to levy and

notice of his right to a collection due process hearing (CDP

notice).   The CDP notice was returned to respondent as refused or

unclaimed.   Ms. Bacon’s CDP notice was also returned but listed

as undeliverable.    On December 2, 2008, respondent received from
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petitioner a Form 8857, Request for Innocent Spouse Relief, which

included the 2002 income tax liability.       On February 19, 2009,

respondent issued a final determination denying relief under

section 6015(f) because the claim was filed more than 2 years

after respondent issued the CDP notice.

     On May 11, 2009, petitioner filed a petition in this Court

disputing the final determination.       After the filing of the

petition, respondent sent petitioner’s case to the Internal

Revenue Service (IRS) Covington Campus Innocent Spouse Operations

(CCISO) to determine whether petitioner would be entitled to

relief in the absence of the 2-year period of limitations imposed

by the income tax regulations.    As a result of that evaluation,

respondent determined that if the request for relief were not

time barred, petitioner would be entitled to relief under section

6015(f) as to the portion of the underpayment attributable to the

income of Ms. Bacon.

                           Discussion

     Section 6013(d)(3) provides that if a joint return is filed,

the tax is computed on the taxpayers’ aggregate income and

liability for the resulting tax is joint and several.       See also

sec. 1.6013-4(b), Income Tax Regs.       However, the IRS may relieve

a taxpayer from joint and several liability under section 6015(f)

if, taking into account all the facts and circumstances, it is

inequitable to hold the taxpayer liable for any unpaid tax or
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deficiency and the taxpayer does not qualify for relief under

section 6015(b) or (c).

     Respondent concedes that petitioner is entitled to the

claimed relief but for the 2-year period set forth in Rev. Proc.

2003-61, 2003-2 C.B. 296, and the regulations.       See sec. 1.6015-

5(b), Income Tax Regs.

     In Lantz v. Commissioner, 132 T.C. 131 (2009), this Court

held invalid the Secretary’s regulation limiting the period for

the right to seek relief under section 6015(f) to 2 years.       The

holding of that case did not establish any time within which a

request for relief would be considered reasonable and/or timely.

Respondent concedes that the only reason for denial was that

petitioner’s request was made more than 2 years after the date of

the first collection activity.    Respondent acknowledges the Lantz

Opinion but notes that it is on appeal and that he disagrees with

this Court’s holding in the case.1       Respondent does not argue

that the amount of time by which petitioner’s request exceeded 2

years is a reason for denial of equitable relief under section

6015(f).   Accordingly, there is no reason for this Court to

further analyze respondent’s claim that the 2-year-period


     1
      Respondent sought to have the small tax case designation
removed from this case in an attempt to be able to appeal any
adverse decision for the purpose of overturning our holding in
Lantz v. Commissioner, 132 T.C. 131 (2009). Petitioner objected
to the removal. Under sec. 7463(a), the small tax case
designation is made “at the option of the taxpayer concurred in
by the Tax Court”. The Court denied respondent’s motion.
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restriction is valid, and we follow the precedent set forth in

Lantz.   Upon the basis of the foregoing, the Court holds that

petitioner is entitled to relief from joint and several liability

under section 6015(f).

     To reflect the foregoing,


                                              Decision will be entered

                                         for petitioner.
