                  T.C. Summary Opinion 2011-98



                      UNITED STATES TAX COURT



              WILLIAM GERARD PEARCE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6053-09S.                 Filed July 26, 2011.



     William Gerard Pearce, pro se.

     John R. Bampfield, for respondent.



     HAINES, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and Rule
references are to the Tax Court Rules of Practice and Procedure.
Amounts are rounded to the nearest dollar.
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this opinion shall not be treated as precedent for any other

case.

     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 an

understatement of Federal income tax reported on a joint Federal

income tax return filed for 2004.

                              Background

     The parties’ stipulation of facts and supplemental

stipulation of facts and the attached exhibits are incorporated

herein by this reference.   Petitioner resided in Tennessee when

he filed his petition.

     On August 23, 2006, respondent received petitioner and his

former spouse’s 2004 joint income tax return (the joint return).

On Schedule A, Itemized Deductions, petitioner and his former

spouse claimed a deduction of $27,200 for State and local income

taxes paid.   As a result, petitioner and his former spouse

claimed a refund of $4,379.    Petitioner’s reported wages in 2004

were $27,200, the exact amount also reported as State and local

income taxes paid.   Petitioner’s former spouse prepared the joint

return.   Petitioner did not review the joint return, and neither

petitioner nor his former spouse signed it.

     On September 15, 2006, respondent sent petitioner and his

former spouse a letter informing them that the joint return was
                               - 3 -

not signed and a declaration requiring their signatures was

needed to remedy their initial failure to sign.   The declaration

stated:

     Under penalties of perjury, I declare that I have examined
     the return (including any accompanying schedules and
     statements) referred to in this letter and, to the best of
     my knowledge and belief, it is true, correct, and complete.

Petitioner and his former spouse signed the declaration, but

petitioner again did not examine the joint return before

signing.   Petitioner was aware at the time he signed the

declaration that Tennessee did not have a State income tax.

     Petitioner unsuccessfully attempted to contact the Internal

Revenue Service (IRS) to ask when a refund check for 2004 would

arrive.    On October 27, 2006, respondent issued a refund check

for $4,379 to petitioner and his former spouse.    Despite

petitioner’s former spouse’s request that the refund check be

sent to her mother’s home, it was sent to the home petitioner

and his former spouse shared in 2006.    Petitioner did not

receive the refund check.   However, on November 10, 2006,

petitioner’s former spouse deposited the refund check in their

joint bank account.   Petitioner’s former spouse used the

proceeds of the refund check for her benefit in small increments

throughout November and December 2006.    Petitioner believed the

joint bank account was an “empty account” during that time

because petitioner and his former spouse were working through

mediation in their divorce proceedings.    On July 16, 2008, the
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Circuit Court of Tennessee for the 30th Judicial District of

Memphis issued a final decree of divorce between petitioner and

his former spouse.

     On December 17, 2007, respondent issued Form 4549, Income

Tax Examination Changes, disallowing the $27,200 State and local

income tax deduction.     Respondent further issued a notice of

deficiency on February 11, 2008, determining a deficiency in

income tax against petitioner and his former spouse of $2,670.

On February 27, 2008, petitioner signed Form 8857, Request for

Innocent Spouse Relief, requesting relief from the deficiency.

     On December 11, 2008, respondent issued a final Appeals

determination letter denying petitioner’s request for relief

from joint and several liability.       Petitioner filed a timely

petition with this Court challenging respondent’s determination.

                              Discussion

     Generally, when a husband and wife file a joint Federal

income tax return, they are jointly and severally liable for the

full amount of the tax.    Sec. 6013(d)(3); Butler v.

Commissioner, 114 T.C. 276, 282 (2000).       However, a spouse may

qualify for relief from joint and several liability under

section 6015(b), (c), or (f) if various requirements are met.

Petitioner contends he qualifies for full relief from joint

liability under section 6015(b) and (c), and if not, that he is

entitled to equitable relief under section 6015(f).
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A.   Relief From Joint and Several Liability Under Section
     6015(b)

     Section 6015(b)(1) authorizes the Commissioner to grant

relief from joint and several liability for tax (including

interest, penalties, and other amounts) if the taxpayer

requesting relief satisfies each of the following five

requirements of subparagraphs (A) through (E):

             (A) a joint return has been made for a taxable
     year;

          (B) on such return there is an understatement of
     tax attributable to erroneous items of one individual
     filing the joint return;

          (C) the other individual filing the joint return
     establishes that in signing the return he or she did
     not know, and had no reason to know, that there was
     such understatement;

          (D) taking into account all the facts and
     circumstances, it is inequitable to hold the other
     individual liable for the deficiency in tax for such
     taxable year attributable to such understatement; and

          (E) the other individual elects (in such form as
     the Secretary may prescribe) the benefits of this
     subsection not later than the date which is 2 years
     after the date the Secretary has begun collection
     activities with respect to the individual making the
     election * * *

     The requesting spouse bears the burden of proving that he

satisfies each of these five requirements.     See Rule 142(a);

Jonson v. Commissioner, 118 T.C. 106, 113 (2002), affd. 353 F.3d

1181 (10th Cir. 2003).     If the requesting spouse fails to meet

any one of the five requirements, he fails to qualify for

relief.   Alt v. Commissioner, 119 T.C. 306, 313 (2002), affd.
                               - 6 -

101 Fed. Appx. 34 (6th Cir. 2004).     Respondent does not dispute

that petitioner satisfies two requirements of section

6015(b)(1); namely, those regarding the filing of a joint return

and making a timely election under section 6015(b)(1)(A) and

(E), respectively.    Thus, we must consider whether petitioner

satisfies the remaining three requirements of section

6015(b)(1).

     The first requirement, in section 6015(b)(1)(B), is that an

understatement of tax be attributable to erroneous items of the

other person filing the joint return.     The joint return claimed

a deduction for $27,200 of State and local income tax that was

not due or paid.   This deduction was for the exact amount

petitioner reported as wages in 2004.     Accordingly, the

deduction is attributable to him.      Further, petitioner signed

the declaration stating under penalties of perjury that he had

examined the joint return and to the best of his knowledge and

belief it was true, correct, and complete.     Because each of the

five requirements of the statute must be satisfied for relief,

petitioner is not eligible for relief from joint and several

liability under section 6015(b)(1) and we need not consider the

other requirements.

B.   Relief From Joint and Several Liability Under Section
     6015(c)

     Petitioner further claims eligibility for relief under

section 6015(c).   Under section 6015(c), if the requesting
                                - 7 -

spouse is no longer married to, or is legally separated from,

the spouse with whom he filed the joint return, the requesting

spouse may elect to limit his liability to the deficiency

properly allocable to him.   As discussed above, the $27,200

State and local income tax deduction is allocable to petitioner.

Accordingly, petitioner is not eligible for relief from joint

and several liability under section 6015(c).

 C.   Relief From Joint and Several Liability Under Section
      6015(f)

      Relief may be granted from joint and several liability

under section 6015(f) if “(1) taking into account all the facts

and circumstances, it is inequitable to hold the individual

liable for any unpaid tax or any deficiency (or any portion of

either); and (2) relief is not available to such individual

under subsection (b) or (c)”.    This Court has jurisdiction to

determine whether a taxpayer is entitled to equitable relief

under section 6015(f).   Sec. 6015(e)(1)(A); see also Farmer v.

Commissioner, T.C. Memo. 2007-74.       Our determination is made in

a trial de novo.   Porter v. Commissioner, 130 T.C. 115, 117

(2008).

      The Commissioner prescribed procedures in Rev. Proc. 2003-

61, 2003-2 C.B. 296, that IRS personnel must use to determine

whether a requesting spouse qualifies for relief under section

6015(f).   According to Rev. Proc. 2003-61, sec. 4.01, 2003-2

C.B. at 297-298, a requesting spouse must satisfy seven
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conditions (threshold conditions) before the Commissioner will

consider a request for relief under section 6015(f).     The

threshold conditions of this section are stated in the

conjunctive, and each condition must be satisfied for the spouse

to be eligible for relief under section 6015(f).   Id.    The

parties do not dispute that the first six threshold conditions

have been satisfied.2

     The final threshold condition, as set forth in Rev. Proc.

2003-61, sec. 4.01(7), 2003-2 C.B. at 297-298, is that the

income tax liability from which the requesting spouse seeks

relief must be attributable to an item of the nonrequesting

spouse, unless one of four enumerated exceptions applies.3      As

discussed above, the deduction of $27,200 for State and local

income taxes is attributable to petitioner.   Petitioner does not

qualify for any of the enumerated exceptions.   Accordingly,



     2
      The first six threshold conditions require that: (1) The
requesting spouse file a joint return for the year at issue; (2)
relief not be available under sec. 6015(b) or (c); (3) the
requesting spouse apply for relief no later than 2 years after
the date of the IRS’ first collection activity after July 22,
1998, with respect to the requesting spouse; (4) no assets be
transferred between the spouses as part of a fraudulent scheme;
(5) the nonrequesting spouse not transfer disqualifying assets to
the requesting spouse; and (6) the requesting spouse not file or
fail to file the return with fraudulent intent. Rev. Proc. 2003-
61, sec. 4.01, 2003-2 C.B. 296, 297.
     3
      The four exceptions are: (1) Attribution due solely to the
operation of community property law; (2) nominal ownership; (3)
misappropriation of funds; and (4) abuse not amounting to duress.
Id. sec. 4.01(7), 2003-2 C.B. at 297-298.
                               - 9 -

petitioner has failed to meet the threshold conditions for

consideration for relief from joint and several liability

pursuant to section 6015(f).

     In reaching these holdings, the Court has considered all

arguments made and, to the extent not mentioned, concludes that

they are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                            Decision will be entered

                                       for respondent.
