                                           SARI F. DEIHL, PETITIONER v. COMMISSIONER                                OF INTERNAL
                                                            REVENUE, RESPONDENT
                                                        Docket No. 22897–08.                 Filed February 23, 2010.

                                                  In 2004 P and her husband litigated three consolidated
                                               cases before the Court concerning their 1996, 1997, and 1998
                                               tax years. P’s attorney raised the issue of relief from joint and
                                               several liability under sec. 6015, I.R.C., in the petition for
                                               1996 but not 1997 or 1998. The request did not invoke any
                                               specific subsection of sec. 6015, I.R.C. P then withdrew her
                                               claim for relief from joint and several liability in the stipula-
                                               tion of facts for the consolidated cases. P’s husband died after
                                               the opinion in the consolidated cases was filed but before
                                               decisions were entered. After decisions were entered, P filed
                                               an administrative claim for relief from joint and several
                                               liability with R for 1996, 1997, and 1998. R determined P did
                                               not qualify for relief under sec. 6015(b), (c), or (f), I.R.C., and
                                               that P’s claim was barred by sec. 6015(g)(2), I.R.C., regard-
                                               less. Held: Sec. 6015(g)(2), I.R.C., applies because the Court
                                               entered final decisions for 1996, 1997, and 1998. Held, further,
                                               P did not participate meaningfully in the prior proceeding.
                                               Held, further, relief from joint and several liability was raised
                                               only in the pleadings for 1996. Therefore, for 1997 and 1998
                                               sec. 6015, I.R.C., relief from joint and several liability was not
                                               an issue in the prior proceeding. Held, further, relief from
                                               joint and several liability under sec. 6015(b) and (f), I.R.C., for
                                               1996 was an issue in the prior proceeding. Held, further, for
                                               purposes of sec. 6015(g)(2), I.R.C., an election under sec.
                                               6015(c), I.R.C., shall not be deemed to have been an issue in
                                               a prior proceeding where the requesting spouse’s original
                                               request for relief under sec. 6015, I.R.C., did not specifically
                                               invoke sec. 6015(c), I.R.C., and the requesting spouse was
                                               ineligible to make an election under sec. 6015(c), I.R.C., at the
                                               time because the requesting spouse’s husband was alive.
                                               Accordingly, an election under sec. 6015(c), I.R.C., for 1996
                                               was not an issue in the prior proceeding. Held, further, sec.
                                               6015(g)(2), I.R.C., bars P from claiming relief from joint and
                                               several liability for 1996 under sec. 6015(b) and (f), I.R.C.
                                               Held, further, the exception in sec. 6015(g)(2), I.R.C., applies
                                               to, and P is not barred from electing, relief from joint and sev-
                                               eral liability under sec. 6015(c), I.R.C., for 1996 and relief

                                      156




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                                               from joint and several liability under sec. 6015(b), (c), and (f),
                                               I.R.C., for 1997 and 1998.

                                           Tim A. Tarter and Kirk A. McCarville, for petitioner.
                                           Anne W. Durning, for respondent.
                                                                                  OPINION

                                        VASQUEZ, Judge: Petitioner seeks review of respondent’s
                                      determination that she is not entitled to relief from joint and
                                      several liability under section 6015(b), (c), and (f) 1 with
                                      respect to her joint Federal income tax liabilities for 1996,
                                      1997, and 1998. Our jurisdiction to review petitioner’s
                                      request for relief is conferred by section 6015(e). The only
                                      issue for decision is whether petitioner is precluded by the
                                      doctrine of res judicata as set forth in section 6015(g)(2) from
                                      raising the issue of relief from joint and several liability for
                                      the years in issue. 2

                                                                               Background
                                        Petitioner and her husband (Mr. Deihl) were the taxpayers
                                      in three cases previously litigated in the Tax Court in 2004:
                                      Docket Nos. 11136–02 (1996), 16293–02 (1998), and 1024–03
                                      (1997). The cases were consolidated for trial, briefing, and
                                      opinion (the consolidated cases). The consolidated cases con-
                                      cerned the substantiation of business expense deductions
                                      claimed by Mr. Deihl and petitioner in 1996, 1997, and 1998
                                      related to their S corporation.
                                        Mr. Deihl hired Donald MacPherson (Mr. MacPherson) to
                                      represent him and petitioner in the consolidated cases.
                                      Robert Hartmann (Mr. Hartmann) assisted Mr. MacPherson
                                      with the representation. 3 Petitioner was not involved in the
                                        1 Unless otherwise indicated, all section references are to the Internal Revenue Code as

                                      amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.
                                        2 Respondent in the notice of determination denied petitioner relief from joint and several li-

                                      ability for each of the years in issue because: (1) ‘‘The information we have available does not
                                      show you meet the requirements for relief ’’; (2) ‘‘The United States Tax Court or other court
                                      issued a final decision regarding the liabilities from which you seek relief and you meaningfully
                                      participated in that proceeding’’ (i.e., res judicata); (3) ‘‘You knew, or had reason to know, of
                                      the income or deductions that caused the additional tax’’; and (4) ‘‘You did not show it would
                                      be unfair to hold you responsible’’. On Mar. 27, 2009, the Court granted the parties’ joint motion
                                      to sever the issues. This Opinion deals only with the issue of res judicata. We do not here decide
                                      whether petitioner qualifies for relief from joint and several liability under sec. 6015.
                                        3 Mr. Hartmann was originally hired by Mr. Deihl over 20 years ago to serve as counsel for

                                      Mr. Deihl and petitioner’s businesses as well as for personal matters. He withdrew as attorney
                                      of record in the consolidated cases to be able to serve as a witness at trial but continued to
                                                                                                      Continued




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                                      hiring of Mr. MacPherson and did not sign the engagement
                                      letter for the consolidated cases.
                                         Mr. MacPherson signed and filed the three petitions in the
                                      consolidated cases; petitioner did not sign them. The petition
                                      in docket No. 11136–02 (the 1996 petition) raised the issue
                                      of relief from joint and several liability. It states:
                                      Under Sec. 6013(e) and 6015, PETITIONER SARI F. DEIHL was/is an
                                      innocent spouse for the year at issue in the statutory NOD. Considering
                                      all of the facts and circumstances, it would be unfair to hold SARI respon-
                                      sible for the understatement of tax, if any, and related penalties and
                                      interest, if any.

                                      The petitions in docket Nos. 16293–02 (1998) and 1024–03
                                      (1997) did not raise the issue of relief from joint and several
                                      liability. 4
                                         On October 21, 2004, the parties submitted their stipula-
                                      tion of facts in the consolidated cases. Paragraph 20 thereof
                                      (paragraph 20) states that ‘‘Petitioner Sari F. Deihl no longer
                                      seeks innocent spouse relief for the taxable years 1996, 1997
                                      or 1998’’. Relief from joint and several liability was not dis-
                                      cussed at trial in the consolidated cases (the 2004 trial).
                                         The Tax Court filed its opinion in the consolidated cases on
                                      December 15, 2005. See Deihl v. Commissioner, T.C. Memo.
                                      2005–287 (Deihl I). The Court generally sustained the
                                      Commissioner’s determinations of deficiencies in tax, addi-
                                      tions to tax, and penalties against petitioner and Mr. Deihl
                                      for 1996, 1997, and 1998 and instructed that decisions would
                                      be entered under Rule 155. Mr. Deihl died on February 5,
                                      2006, 52 days after Deihl I was filed but before the final
                                      decisions in the consolidated cases were entered.
                                         Petitioner served as personal representative for the estate
                                      of Mr. Deihl from March 20, 2006, to July 30, 2007. She
                                      sought new counsel after receiving advice from Mr. Mac-
                                      Pherson and Mr. Hartmann with which she disagreed. On or
                                      about March 16, 2006, petitioner retained Martha Patrick,
                                      whose representation of petitioner ended on or around April
                                      24, 2006. Soon thereafter, on April 27, 2006, petitioner
                                      retained Terence D. Woolston (Mr. Woolston) and Tim A.
                                      assist Mr. MacPherson throughout the litigation.
                                         4 Similarly, the answers filed in 1997 and 1998 were silent as to relief from joint and several

                                      liability and the Commissioner, in his pretrial memorandum for the consolidated cases, referred
                                      only to 1996 in addressing petitioner’s claim for relief from joint and several liability.




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                                      Tarter of Woolston & Tarter P.C. to represent her and the
                                      estate of Mr. Diehl.
                                        Mr. Woolston and counsel for the Commissioner worked
                                      together to finalize the Rule 155 computations in the consoli-
                                      dated cases.
                                        The Court entered its decision in docket No. 11136–02 on
                                      September 12, 2006, and in docket Nos. 16293–02 and 1024–
                                      03 on October 3, 2006. 5 Neither side appealed. 6
                                        On or about March 6, 2007, petitioner filed Form 8857,
                                      Request for Innocent Spouse Relief, requesting relief under
                                      section 6015(b), (c), and (f) for 1996, 1997, and 1998. On
                                      August 22, 2008, respondent sent petitioner a notice of deter-
                                      mination denying petitioner’s request for relief from joint and
                                      several liability for each of those years. On September 16,
                                      2008, petitioner timely filed a petition for review of respond-
                                      ent’s determination. Petitioner resided in Arizona at the time
                                      she filed the petition in this case.

                                                                                Discussion
                                         Respondent argues that res judicata as delineated in sec-
                                      tion 6015(g)(2) bars petitioner from claiming relief from joint
                                      and several liability for 1996, 1997, and 1998 because the
                                      Court entered final decisions for those years. Respondent fur-
                                      ther argues that the exception to res judicata in section
                                      6015(g)(2) does not apply because relief from joint and sev-
                                      eral liability was an issue in the consolidated cases and peti-
                                      tioner participated meaningfully therein.
                                         Petitioner argues that the exception to res judicata in sec-
                                      tion 6015(g)(2) applies because relief from joint and several
                                      liability was not an issue in the consolidated cases and she
                                      did not participate meaningfully therein. She also argues
                                      that res judicata should not apply to her election under sec-
                                      tion 6015(c) because she could not have raised it in the
                                      consolidated cases. 7
                                        5 The Court originally entered its decisions in docket Nos. 16293–02 and 1024–03 on Sept. 12,

                                      2006, but vacated the original decisions after granting the Commissioner’s motion to vacate.
                                        6 The decision in docket No. 11136–02 became final on Dec. 12, 2006. The decisions in docket

                                      Nos. 16293–02 and 1024–03 became final on Jan. 2, 2007.
                                        7 Respondent argues petitioner could have raised sec. 6015(c) by moving the Court to reopen

                                      the record or to vacate the decisions before they became final. Given our conclusion, discussed
                                      hereinafter, that petitioner did not participate meaningfully in the consolidated cases and that
                                      relief under sec. 6015(c) in fact was not an issue in the consolidated cases, we need not decide
                                      whether petitioner could have raised relief under sec. 6015(c) in the consolidated cases.




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                                      160                134 UNITED STATES TAX COURT REPORTS                                        (156)


                                      I.    Section 6015(g)(2)
                                         Section 6015(g)(2) codifies the application of res judicata
                                      with respect to claims for relief from joint and several
                                      liability under section 6015.
                                           A.    Res Judicata in General
                                        Under the judicial doctrine of res judicata, when a court of
                                      competent jurisdiction enters a final judgment on the merits
                                      of a cause of action, the parties to the action are bound by
                                      every matter that was or could have been offered and
                                      received to sustain or defeat the claim. Commissioner v.
                                      Sunnen, 333 U.S. 591, 597 (1948); see also Gustafson
                                      v. Commissioner, 97 T.C. 85, 91 (1991). The doctrine of res
                                      judicata ‘‘serves to promote judicial economy and the repose
                                      of disputes’’ by precluding repetitious lawsuits. Gustafson v.
                                      Commissioner, supra at 91.
                                        Because Federal income taxes are determined on an
                                      annual basis, each year is a separate cause of action, and res
                                      judicata is applied to bar subsequent proceedings involving
                                      the same tax year. Commissioner v. Sunnen, supra at 597–
                                      598; Calcutt v. Commissioner, 91 T.C. 14, 21 (1988). As a
                                      general rule, where the Tax Court has entered a decision for
                                      a taxable year, both the taxpayer and the Commissioner
                                      (with certain exceptions) are barred from reopening that
                                      year. Burke v. Commissioner, 105 T.C. 41, 47 (1995);
                                      Hemmings v. Commissioner, 104 T.C. 221, 233 (1995).
                                        A stipulated judgment is a judgment on the merits for pur-
                                      poses of res judicata. Baker v. IRS, 74 F.3d 906, 910 (9th Cir.
                                      1996) (and cases cited thereat). It follows that, for res judi-
                                      cata purposes, the decision incorporates those elements that
                                      the parties have settled by stipulation as well as those that
                                      have been redetermined by the Court. See Lincir v. Commis-
                                      sioner, T.C. Memo. 2007–86.
                                        Although the general outlines of res judicata are relatively
                                      straightforward, the details applicable in certain cases may
                                      be quite intricate. See, e.g., the discussion in Hemmings v.
                                      Commissioner, supra at 230–235. In addition, Congress
                                      sometimes enacts legislation that overrides or modifies res
                                      judicata. See, e.g., Burke v. Commissioner, supra at 47.




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                                            B.        The Exception
                                         Under common law principles of res judicata, a taxpayer
                                      who was a party to a prior proceeding for the same taxable
                                      year is barred from seeking relief from joint and several
                                      liability whether or not the claim had been raised as an issue
                                      in the prior proceeding. Section 6015(g)(2) creates an excep-
                                      tion to this rule where such relief was not an issue in the
                                      prior proceeding. However, the exception does not apply if
                                      the court determines that the taxpayer participated meaning-
                                      fully in the prior proceeding. 8 Thus, res judicata does not bar
                                      a taxpayer from requesting relief from joint and several
                                      liability under section 6015(b), (c), or (f) if: (1) Relief from
                                      joint and several liability under section 6015(b), (c), or (f) was
                                      not an issue in the prior proceeding; and (2) the court deter-
                                      mines that the taxpayer did not participate meaningfully in
                                      the prior proceeding. Said differently, if a final decision was
                                      entered in a prior proceeding for a tax year and relief from
                                      joint and several liability was an issue therein, section
                                      6015(g)(2) will bar the taxpayer from subsequently
                                      requesting the same relief for that year. Or, if a final deci-
                                      sion was entered in a prior proceeding for a tax year and the
                                      taxpayer     participated    meaningfully     therein,     section
                                      6015(g)(2) bars the taxpayer from subsequently requesting
                                      relief from joint and several liability that was or could have
                                      been an issue in the prior proceeding. See Vetrano v.
                                      Commissioner, 116 T.C. 272, 278 (2001); sec. 1.6015–1(e),
                                      Income Tax Regs.
                                      II.        The Consolidated Cases
                                        This Court entered final decisions in the consolidated cases
                                      for the tax years at issue here. Res judicata as delineated in
                                      section 6015(g)(2) bars petitioner’s claims for relief from joint
                                      and several liability unless those claims for relief were
                                      not an issue in and petitioner did not participate meaning-
                                           8 Sec.   6015(g)(2) provides:
                                      RES JUDICATA.—In the case of any election under subsection (b) or (c) or of any request for equi-
                                      table relief under subsection (f), if a decision of a court in any prior proceeding for the same
                                      taxable year has become final, such decision shall be conclusive except with respect to the quali-
                                      fication of the individual for relief which was not an issue in such proceeding. The exception
                                      contained in the preceding sentence shall not apply if the court determines that the individual
                                      participated meaningfully in such prior proceeding.




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                                      fully in the consolidated cases. We first address whether peti-
                                      tioner participated meaningfully in the consolidated cases.
                                            A.    Meaningful Participation
                                         Under section 6015(g)(2), the requesting spouse bears the
                                      burden of proving, by a preponderance of the evidence, that
                                      he or she did not participate meaningfully in the prior litiga-
                                      tion. Monsour v. Commissioner, T.C. Memo. 2004–190.
                                         Meaningful participation is not defined in section
                                      6015(g)(2) or the accompanying regulations, and the legisla-
                                      tive history does not provide guidance as to the proper defini-
                                      tion. Moreover, the Court, despite deciding whether
                                      requesting spouses have participated meaningfully in prior
                                      proceedings, has not clearly defined meaningful participation,
                                      although we have indicated that while ‘‘merely [complying]’’
                                      with a spouse’s instructions to sign various pleadings and
                                      other documents filed in prior litigation is not conclusive of
                                      meaningful participation, Thurner v. Commissioner, 121 T.C.
                                      43, 53 (2003), signing court documents and participating in
                                      settlement negotiations are indicators of meaningful partici-
                                      pation, id.; Monsour v. Commissioner, supra. This case war-
                                      rants a brief description of our cases discussing meaningful
                                      participation.
                                         In Thurner v. Commissioner, supra, the taxpayer husband
                                      and the taxpayer wife filed separate petitions each seeking
                                      relief from joint and several liability under section 6015. The
                                      Commissioner moved for summary judgment on the issue of
                                      meaningful participation. We found that the record clearly
                                      established that the taxpayer husband had participated
                                      meaningfully in a prior court proceeding. The taxpayer hus-
                                      band had signed court documents and been fully engaged in
                                      the proceeding. In addition, the taxpayer husband had main-
                                      tained exclusive control over all tax matters including the
                                      handling of the prior proceeding. To the contrary, we found
                                      there to be a genuine issue of material fact as to whether the
                                      taxpayer wife had participated meaningfully in the prior pro-
                                      ceeding where she asserted that she had merely complied
                                      with her husband’s instructions to sign the pleadings and
                                      various other documents that were filed in the prior pro-
                                      ceeding. 9
                                           9 Because   the case involved a motion for summary judgment, the Court did not decide whether




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                                         In Monsour v. Commissioner, supra, we found the taxpayer
                                      had participated meaningfully in a prior Tax Court pro-
                                      ceeding involving the taxpayer and her husband. We found
                                      significant the fact that the taxpayer chose not to call a par-
                                      ticular witness to testify about her level of participation in
                                      the prior proceeding and inferred from her failure to call this
                                      witness that his testimony, if given, would have been
                                      unfavorable to the taxpayer. The taxpayer relied on her hus-
                                      band’s testimony to support her position that she had not
                                      participated meaningfully. However, we did not find this
                                      testimony to be credible and we did not rely on this testi-
                                      mony to support the taxpayer’s contentions. Moreover, the
                                      taxpayer, an attorney, agreed to a stipulated decision that
                                      she was jointly and severally liable for deficiencies in tax.
                                         In Huynh v. Commissioner, T.C. Memo. 2006–180, affd.
                                      276 Fed. Appx. 634 (9th Cir. 2008), the record showed that
                                      in a prior proceeding 10 the requesting spouse had read and
                                      signed two petitions filed with the Tax Court; spoken and
                                      participated at pretrial meetings with IRS counsel; signed
                                      various documents including a stipulation of settled issues, a
                                      power of attorney, and stipulations of facts; testified about
                                      her husband’s potential income sources; and signed a trial
                                      brief, a reply brief, and a motion for leave to file a reply
                                      brief. The taxpayer had also prepared her and her husband’s
                                      joint Federal income tax returns for the years in issue.
                                      Despite the requesting spouse’s arguments to the contrary
                                      and although she may have signed some documents under
                                      the direction of her husband, we held on the entire record
                                      that the taxpayer had nevertheless participated meaningfully
                                      in the prior proceeding.
                                         In Moore v. Commissioner, T.C. Memo. 2007–156, we found
                                      the taxpayer’s participation in a prior proceeding to be mean-
                                      ingful where the taxpayer had been informed about section
                                      6015, had participated in meetings with IRS counsel and the
                                      Court, and had voluntarily entered into a settlement.
                                         Petitioner’s participation in the consolidated cases differs
                                      significantly from that of the requesting spouses in Monsour,
                                      Huynh, and Moore. Petitioner, who is not an attorney and
                                      did not complete her high school education, did not sign any
                                      the taxpayer wife had participated meaningfully in the prior proceeding.
                                        10 Huynh v. Commissioner, T.C. Summary Opinion 2001–131.




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                                      court documents in the consolidated cases. She did not
                                      review the petitions or the stipulations of facts, nor did she
                                      agree to any of the stipulations. Mr. MacPherson and Mr.
                                      Hartmann did not discuss these documents with petitioner.
                                      In fact, she saw them for the first time at trial in the present
                                      matter. Petitioner did not meet with any IRS personnel,
                                      participate in any settlement negotiations with the IRS, or sit
                                      in on any such meetings between her attorneys and the IRS
                                      during the litigation in the consolidated cases. However, peti-
                                      tioner was called as a witness in the 2004 trial and testified
                                      briefly 11 about certain expenses for entertainment and com-
                                      puters deducted by her and Mr. Deihl’s S corporation.
                                         Respondent called Robert Cuatto (Mr. Cuatto), associate
                                      area counsel with the IRS, to testify about petitioner’s partici-
                                      pation in the consolidated cases. Mr. Cuatto observed peti-
                                      tioner in discussions with Mr. Deihl and their counsel during
                                      several breaks in the 2-day trial and in the hallway in the
                                      morning before trial both days. In his opinion, petitioner
                                      seemed to be engaged and actively involved in the trial. How-
                                      ever, Mr. Cuatto was not involved in any of the aforemen-
                                      tioned discussions and admittedly had no knowledge of what
                                      was being discussed. We cannot speculate as to what peti-
                                      tioner, Mr. Deihl, and their counsel may have been dis-
                                      cussing during breaks and in the hallway before trial.
                                         Petitioner and respondent initially expressed a desire to
                                      call Mr. MacPherson to testify as to petitioner’s participation
                                      in the consolidated cases. However, Mr. MacPherson was in
                                      Germany recovering from an illness at the time of trial in the
                                      present matter and did not testify. The parties agreed that
                                      the record was sufficiently complete without his testimony.
                                      Therefore, we shall not infer anything from the fact that Mr.
                                      MacPherson did not testify.
                                         Mr. Hartmann did not meet with petitioner immediately
                                      after Deihl I was filed. He was instructed by Mr. Deihl to
                                      keep the findings in Deihl I ‘‘under our hat for a while’’. It
                                      was only after Mr. Deihl’s death that Mr. Hartmann and Mr.
                                      MacPherson met with petitioner. At that time they gave peti-
                                      tioner advice with which she disagreed. Petitioner then
                                      informed Mr. Hartmann that she was speaking with different
                                       11 Only 11 out of 335 pages of the transcript from the 2004 trial consisted of petitioner’s testi-

                                      mony.




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                                      attorneys. Mr. Woolston handled the consolidated cases from
                                      that point on.
                                        We believe Mr. Deihl, like the husband in Thurner v.
                                      Commissioner, 121 T.C. 43 (2003), controlled the litigation in
                                      the consolidated cases until his death. Although petitioner
                                      testified at the 2004 trial, she was more like a third-party
                                      fact witness than a participating litigant. The totality of the
                                      evidence demonstrates that petitioner was never fully
                                      informed or engaged in the litigation. We find that petitioner
                                      has shown that she did not participate meaningfully in the
                                      consolidated cases.
                                           B.    Relief at Issue in the Consolidated Cases
                                         Mr. MacPherson raised the issue of relief from joint and
                                      several liability in the 1996 petition. Although paragraph 20
                                      seemingly withdraws the issue for all years in the consoli-
                                      dated cases, the petitions and corresponding answers filed for
                                      1997 and 1998 did not raise relief from joint and several
                                      liability. Further, respondent’s pretrial memorandum for the
                                      consolidated cases specifically addressed petitioner’s claim
                                      with respect to 1996 only. Because relief from joint and sev-
                                      eral liability was raised in the pleadings for 1996 only, that
                                      is the only year in which said relief was an issue. See Rules
                                      38, 324. Relief from joint and several liability was not an
                                      issue in 1997 or 1998. The mere reference to 1997 and 1998
                                      in paragraph 20 without more did not put relief from joint
                                      and several liability in issue for those years. Accordingly,
                                      petitioner is not barred from making an election under sec-
                                      tion 6015(b) and (c) and requesting equitable relief under
                                      section 6015(f) for 1997 and 1998.
                                         The 1996 petition did not specify the basis for relief
                                      requested under section 6015; i.e., whether petitioner was
                                      electing or requesting relief under section 6015(b), (c), or (f).
                                      However, petitioner was not eligible to make an election
                                      under section 6015(c) when the 1996 petition was filed
                                      because she was not divorced or separated from Mr. Deihl. 12
                                         12 An individual shall only be eligible to make an election under sec. 6015(c) if at the time

                                      of the election such individual is no longer married to, or is legally separated from, the indi-
                                      vidual with whom such individual filed the joint return to which the election relates, or such
                                      individual was not a member of the same household as the individual with whom such joint
                                      return was filed at any time during the 12-month period ending on the date such election is
                                      filed. Sec. 6015(c)(3)(A)(i). For purposes of these eligibility requirements, a widow is treated as
                                                                                                       Continued




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                                      Determining what subsections of section 6015 were an issue
                                      in a prior proceeding under these facts is an issue of first
                                      impression. We hold that for purposes of section 6015(g)(2),
                                      an election under section 6015(c) shall not be deemed to have
                                      been an issue in a prior proceeding where the requesting
                                      spouse’s original request for relief under section 6015 did not
                                      specifically invoke section 6015(c) and the requesting spouse
                                      was ineligible to make an election under section 6015(c) at
                                      the time because the requesting spouse’s husband was
                                      alive. 13 Therefore, we conclude that petitioner’s claim for
                                      innocent spouse relief in the 1996 petition was an election
                                      under section 6015(b) and a request for equitable relief under
                                      section 6015(f). Relief under section 6015(c) for 1996 was not
                                      an issue in the consolidated cases. 14
                                         Petitioner argues she should not be bound by the 1996
                                      petition or paragraph 20 because she was not adequately rep-
                                      resented during the consolidated cases and she was not
                                      aware of the contents of the 1996 petition or paragraph 20
                                      until after Deihl I was released. However, we have held that
                                      ‘‘the quality of advocacy and the actual knowledge of the liti-
                                      gants are not special circumstances in determining whether
                                      a prior judgment is a bar in a subsequent litigation.’’ Moore
                                      v. Commissioner, T.C. Memo. 2007–156; see also Rule 33(b).
                                      Accordingly, relief from joint and several liability under sec-
                                      tion 6015(b) and (f) was an issue in the consolidated cases as
                                      to 1996; relief under section 6015(c) was not.
                                         We find that section 6015(g)(2) bars petitioner from
                                      making an election under section 6015(b) and requesting
                                      equitable relief under section 6015(f) for 1996. We find fur-
                                      ther that the exception in section 6015(g)(2) applies to peti-
                                      tioner’s claim for relief under section 6015(c) for 1996 and
                                      petitioner’s claim for relief under section 6015(b), (c), and (f)
                                      for 1997 and 1998.



                                      no longer married. Jonson v. Commissioner, 118 T.C. 106, 123–124 (2002), affd. 353 F.3d 1181
                                      (10th Cir. 2003).
                                        13 Our holding does not impair the Court’s ability to interpret an ambiguous request for relief

                                      under sec. 6015 as including an election under sec. 6015(c).
                                        14 We do not attempt in this Opinion to decide how sec. 6015(g)(2) applies under a different

                                      set of facts where a requesting spouse does not become eligible to elect relief under sec. 6015(c)
                                      until after a decision in a prior proceeding has become final pursuant to sec. 7481.




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                                      (156)                           DEIHL v. COMMISSIONER                                         167


                                      III.     Conclusion
                                         A summary of our holdings follows. The Court entered
                                      final decisions for petitioner’s 1996, 1997, and 1998 tax
                                      years, which were litigated in 2004. Petitioner did not
                                      participate meaningfully in that litigation. Relief from joint
                                      and several liability was an issue in the consolidated cases
                                      as to 1996 only under section 6015(b) and (f). Therefore, peti-
                                      tioner is barred from making an election under section
                                      6015(b) and requesting equitable relief under section 6015(f)
                                      for 1996. Relief from joint and several liability under section
                                      6015(c) for 1996 and section 6015(b), (c), and (f) for 1997 and
                                      1998 was not an issue in the consolidated cases. Therefore,
                                      the exception to res judicata in section 6015(g)(2) applies to
                                      these claims. Accordingly, petitioner is not barred from
                                      making an election under section 6015(c) for 1996 or
                                      from making an election under section 6015(b) and (c) and
                                      requesting equitable relief under section 6015(f) for 1997
                                      and 1998.
                                         In reaching all of our holdings herein, we have considered
                                      all arguments made by the parties, and to the extent not
                                      mentioned above, we find them to be irrelevant or without
                                      merit.
                                         To reflect the foregoing,
                                                                                 An appropriate order will be issued.

                                                                               f




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