                  T.C. Summary Opinion 2003-21



                     UNITED STATES TAX COURT



                MARY ANN WHITACRE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14982-02S.             Filed March 17, 2003.


     Mary Ann Whitacre, pro se.

     Audrey M. Morris and Charles A. Hall, for respondent.



     ARMEN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1   The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority.


     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and, unless
otherwise indicated, all subsequent section references are to the
Internal Revenue Code, as amended.
                                 - 2 -

     This matter is before the Court on respondent’s Motion To

Dismiss For Lack Of Jurisdiction, as supplemented.    Respondent

contends that this case should be dismissed for lack of

jurisdiction “as the petition requests review of Respondent’s

determination denying relief from liability based upon the

provisions of I.R.C. § 66(c).”    As explained in detail below, we

shall grant respondent’s motion, as supplemented.

Background

     The record establishes and/or the parties do not dispute the

following:

     A.    Petitioner and Mr. Sonnabend

     At the time that her petition was filed with the Court, and

at all other times relevant to this case, petitioner resided in

Dallas, Texas.    As a resident of Texas, petitioner is subject to

the community property laws of that State.

     For a period of time, petitioner was married to Henry

Sonnabend (Mr. Sonnabend), a certified public accountant and

senior regional partner with Ernst and Young.    Like petitioner,

Mr. Sonnabend was a resident of Texas at all relevant times and

subject to the community property laws of that State.

     Prior to the taxable year 1995, petitioner and Mr. Sonnabend

selected as their annual accounting period a fiscal year ending

June 30.    Accordingly, petitioner’s taxable year 1995 includes

the period from July 1, 1994 through June 30, 1995.
                                 - 3 -

     Petitioner and Mr. Sonnabend separated on November 1, 1994,

and their divorce became final on June 20, 1996.

     B.     Petitioner’s Profession and Income

     Petitioner has a bachelor’s degree in pharmacy.      During the

taxable year 1995, she worked as an account executive for certain

health care providers and received total wages in the amount of

$37,000.

     C.     Petitioner’s 1995 Return and Amended Return

         Petitioner timely filed a Federal income tax return, Form

1040, for the taxable year 1995.     Petitioner’s return was

prepared by a certified public accountant (C.P.A.).

     On her return, petitioner listed her filing status as

“married filing separate”.     Petitioner included in income one-

half of her wages (about $18,500) and one-half of Mr. Sonnabend’s

income of $185,000 as disclosed to her by Mr. Sonnabend.

Petitioner reported a tax liability of $24,737, which was reduced

by one-half of the tax withheld from her wages ($3,754), leaving

a balance due of $20,983.     Petitioner did not claim any credit or

payment attributable to Mr. Sonnabend on her return.2




     2
       Petitioner avers that Mr. Sonnabend did not have any
income subject to withholding and that he did not make any
estimated tax payments.
                               - 4 -

     In July 1996, petitioner, with the assistance of her C.P.A.,

filed an amended return, Form 1040X, for the taxable year 1995.

The principal change reflected on the amended return was the

inclusion of “her 50% share of estimated tax payment made

10/15/95" in the amount of $13,125.3   The “bottom line” of the

amended return showed a balance due of $7,210.4

     D.   Petitioner’s Request for Relief

     On or about September 15, 2001, petitioner filed with

respondent Form 8857, Request for Innocent Spouse Relief, for the

taxable year 1995.   In an attachment to the form, petitioner

stated that she was requesting equitable relief “According to

revised guidelines”, which she quoted as follows:

     If you were married and filed a separate return in a
     community property state and are now liable for an
     underpayment or understatement of tax, you may request
     equitable relief if you believe it is unfair for you to
     be liable for the unpaid tax.[5]

     E.   Respondent’s Final Notice

     In June 2002, the Commissioner utilized a form letter with



     3
        The record does not definitively reveal who made the
“estimated tax payment” on Oct. 15, 1995; however, it would
appear that it was made by Mr. Sonnabend. Also, the record
suggests that this payment was actually a payment that
accompanied a request by Mr. Sonnabend for extension of time to
file his separate return for the taxable year 1995.
     4
        The record does not reveal whether respondent accepted
petitioner’s amended return.
     5
        This sentence appears in the General Instructions
accompanying Form 8857.
                                  - 5 -

check boxes, Letter 3279(DO)(Rev. 1-2001), as a final notice of

the Commissioner’s determination that a taxpayer is not entitled

to relief from joint and several liability on a joint return

under either section 6015(b), (c), or (f).   The form letter also

served to advise the taxpayer that “You can contest our

determination by filing a petition with the United States Tax

Court.”

     On June 4, 2002, respondent sent petitioner Letter

3279(DO)(Rev. 1-2001).   Respondent modified the letter by

manually typing in the following check box and sentence:

     : You are not entitled to equitable relief of
     liability for the unpaid tax under Section 66(c) of
     the Internal Revenue Code.

     F.   Petitioner’s Petition

     Petitioner appealed respondent’s determination by filing a

petition with this Court, which was docketed as a petition for

determination of relief from joint and several liability on a

joint return.

     In her petition, petitioner does not identify or invoke any

section of the Internal Revenue Code under which she seeks

relief.   However, the crux of petitioner’s position is clearly

revealed in the following passages from the petition:

     According to state community property laws, if I had
     not have to claim half his [Mr. Sonnabend’s] income, I
     would not have owed anything.

     If you were only to look at my income–-and my
     withholding–-and my payments--I should receive a
                                 - 6 -

     refund. That refund, and return of the money I have
     paid, would pay the amount I owe on the last two years.
     It is important to note, that I did not have use of his
     [Mr. Sonnabend’s] income, even though it was community
     property.

     G.   Respondent’s Motion

     As previously stated, respondent filed a motion to dismiss

for lack of jurisdiction.   The premise of respondent’s motion is

that no section of the Internal Revenue Code confers jurisdiction

on this Court to review the Commissioner’s denial of relief under

section 66(c) in respect of unpaid liability on a separately-

filed return.

     Pursuant to notice, respondent’s motion was called for

hearing at the Court’s motions session in Washington, D.C.

Counsel for respondent appeared at the hearing and presented

argument in support of the pending motion.    There was no

appearance by or on behalf of petitioner at the hearing; however,

petitioner did file a written statement pursuant to Rule 50(c).

     Following the hearing, the Court directed respondent to

supplement his motion to provide certain documents relevant to

the disposition of his motion.    Respondent so complied.

Discussion

     We begin by emphasizing that the tax in respect of which

petitioner seeks relief is tax that petitioner reported on her

separately filed income tax return for the taxable year 1995.

That tax is principally attributable to community property income
                                   - 7 -

of Mr. Sonnabend.       If petitioner had not reported that income on

the ground that the provisions of section 66 did not require her

to do so, respondent might have concluded to the contrary after

examining her return and determined a deficiency in her income

tax.       If that had happened, petitioner would have had the right

to file a petition for redetermination with this Court and invoke

the relief provided by section 66.6        See secs. 6211(a); 6213(a);

see also Hardy v. Commissioner, 181 F.3d 1002 (9th Cir. 1999),

affg. T.C. Memo. 1997-97; Morris v. Commissioner, T.C. Memo.

2002-17; Beck v. Commissioner, T.C. Memo. 2001-198.

       Unfortunately for petitioner, the foregoing scenario did not

occur.       In short, the present action is not one for

redetermination as respondent did not determine a deficiency in

petitioner’s income tax.       Rather, petitioner commenced the

present action asking this Court to review respondent’s denial of

her request on Form 8857 for “Innocent Spouse Relief”.

       There is no question that the Tax Court is a court of

limited jurisdiction, and we may exercise our jurisdiction only

to the extent authorized by Congress.        Sec. 7442.   In Bernal v.



       6
        Under certain circumstances, sec. 66 provides that a
taxpayer may be relieved of liability from Federal income tax on
community property earned by a spouse. See Bernal v.
Commissioner, 120 T.C.     (2003) (slip op. at 7), for a summary
of the relief provided by that section. Of particular note is
sec. 66(c), which, under the conditions enumerated in that
section, relieves a spouse of liability for tax on an item of
community property attributable to the other spouse.
                              - 8 -

Commissioner, 120 T.C.     (2003), we held that this Court does

not have jurisdiction to review the Commissioner’s denial of

equitable relief under section 66(c) in a “stand alone” (i.e.,

independent) action commenced by a spouse (or former spouse) who

filed a separate return.

     We are not unsympathetic to the plight of petitioner, who

strikes us as a conscientious taxpayer.   However, if we lack

jurisdiction, as we do, we have no alternative but to grant

respondent’s motion to dismiss.7




     7
         Although petitioner cannot pursue the present case in
this Court, she is not without legal remedies. Thus, petitioner
may pay the tax, file a claim for refund with the Internal
Revenue Service, and if the claim is denied or not acted on
within 6 months, sue for a refund in the appropriate Federal
District Court or the U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970). In addition,
at the hearing on respondent’s motion, counsel for respondent
acknowledged that if respondent pursues collection against
petitioner by either filing a notice of Federal tax lien or
serving a final notice of intent to levy, petitioner would be
entitled to present appropriate spousal defenses, which would
include equitable relief under sec. 66(c). See sec.
6330(c)(2)(A)(i) and (d)(1)(A); sec. 301.6330-1(e)(2), Proced. &
Admin. Regs.; see also Bernal v. Commissioner, 120 T.C.
(2003) (slip op. 9-10).
                                - 9 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,

                                        An Order will be entered

                                granting respondent’s Motion

                                To Dismiss For Lack Of

                                Jurisdiction, as supplemented.
