                  T.C. Summary Opinion 2010-103



                    UNITED STATES TAX COURT



          TIMOTHY MACARTHUR DAYE, SR., Petitioner, AND
              MARVIS HENDERSON-DAYE, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3148-09S.               Filed July 28, 2010.



     Timothy MacArthur Daye, Sr., pro se.

     Marvis Henderson-Daye, pro se.

     Olivia J. Hyatt, for respondent.



     ARMEN, 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.1    Pursuant to section



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
                                - 2 -

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.

     In this section 6015(e) proceeding, petitioner seeks to be

relieved from a 2006 Federal income tax liability assessed

against him because he filed a joint Federal income tax return

for that year.    Consistent with respondent’s determination

denying him administrative relief, petitioner’s spouse, Marvis

Henderson-Daye (intervenor), from whom he has been separated for

over 12 months, opposes relief.

                              Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.    At the time the petition was

filed, petitioner and intervenor resided at separate addresses in

the State of North Carolina.

     Petitioner and intervenor were married in 1995; they

separated in December 2007 and at the time of trial, in February

2010, were still separated.    Petitioner and intervenor have one

minor son.   During their marriage petitioner and intervenor

maintained separate financial accounts but had one joint bank

account for joint items such as joint tax refunds.

     Petitioner holds a bachelor of arts degree in business

administration.    He has taken coursework in individual
                                - 3 -

and corporate taxation as well as an H & R Block tax course.   At

all relevant times, petitioner has worked for Duke University as

a financial analyst.   During his marriage to intervenor,

petitioner was the primary breadwinner, and through and including

the time of trial, his average income was approximately $75,000

per year.

     Intervenor holds a bachelor of arts degree in communications

as well as a master’s degree.   On March 31, 2002, intervenor was

involved in an accident and thereafter became permanently

disabled; before becoming permanently disabled intervenor worked

for the State of North Carolina.   At the time she became

permanently disabled, the State of North Carolina paid intervenor

65 percent of her salary for a 3-year period until she was

approved for Social Security disability benefits.

     In 2006, intervenor’s request for Social Security disability

benefits was approved.   During the time that intervenor was

awaiting approval of her request for Social Security disability

benefits, she incurred credit card debt to pay for living

expenses including household bills and prescriptions.

     In July 2007, intervenor received a $20,000 insurance

settlement resulting from the March 2002 accident.   Of the

$20,000 settlement, approximately $7,000 served to pay attorney’s

fees and the remainder was used to pay off the credit card bills

that intervenor had accrued while awaiting approval for the
                               - 4 -

Social Security disability benefits.   During her marriage to

petitioner, and through and including the time of trial,

intervenor’s average annual income was approximately $25,000.

     Intervenor received a Form SSA-1099, Social Security Benefit

Statement, for 2006 indicating she received disability benefits

of $66,010.50.   The benefits were paid in a lump sum for years

2002 through 2005.   Of the $66,010.50, $56,109 was taxable, but

no income tax was withheld.

     Petitioner and intervenor filed their joint Federal income

tax return for 2006 on November 26, 2007, reporting a tax

liability of $11,875.   The tax return was prepared by petitioner

and presented to intervenor for her review and signature.      Along

with the 2006 tax return intervenor remitted a check from her

individual bank account for $1,875, to bring the outstanding tax

liability to $10,000.   Intervenor wrote the check at petitioner’s

request because he stated that the outstanding liability was her

liability.2   Along with the joint tax return petitioner and

intervenor submitted an installment agreement, signed by both

parties, indicating they could pay $500 per month toward the

outstanding liability reported on the 2006 Federal income tax

return.




     2
        In actuality, of the reported tax liability of $11,875,
$3,138 was attributable to petitioner and $8,737 was attributable
to intervenor.
                                - 5 -

     On December 6, 2007, intervenor and her son moved out of the

family home.   Before moving out, intervenor established an

apartment by setting up utilities and purchasing bedroom and

living room furniture, using the money from the lump-sum Social

Security benefits.   Since moving out of the family home,

intervenor has maintained her apartment, providing for all of the

living expenses for herself and her son.    From January 1, 2008,

through August 2009, petitioner did not pay child support to

intervenor.    As of the time of trial, petitioner and intervenor

have an agreement under which $834 is garnished from petitioner’s

paycheck for child support; however, petitioner remains

approximately $10,000 in arrears for child support.

     On February 5, 2008, petitioner submitted to respondent a

Form 8857, Request for Innocent Spouse Relief, under section

6015(f).   Ultimately, respondent issued a final determination

denying petitioner’s request for relief under section 6015(f).

                             Discussion

     In general, spouses may elect to file a joint Federal income

tax return for a year even if one spouse had no obligation to

file a return for that year.    Sec. 6013(a).   After electing to

file a joint Federal income tax return, each spouse is jointly

and severally liable not only for the entire tax due, but also

for any deficiency subsequently determined, even if all income

giving rise to the tax liability is allocable to only one of the
                                - 6 -

spouses.   Sec. 6013(d)(3); Butler v. Commissioner, 114 T.C. 276,

282 (2000).   If certain requirements are met, however, an

individual may be relieved of joint and several liability under

section 6015.   Except as otherwise provided in section 6015, the

taxpayer bears the burden of proof to show his or her entitlement

to relief.    Rule 142(a); Alt v. Commissioner, 119 T.C. 306, 311

(2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004).

     There are three types of relief available under section

6015.   In general, section 6015(b) provides full or apportioned

relief from joint and several liability, section 6015(c) provides

proportionate tax relief to divorced or separated taxpayers, and

in certain circumstances section 6015(f) provides equitable

relief from joint and several liability if relief is not

available under subsection (b) or (c).

     Petitioner did not request nor is petitioner entitled to

relief under section 6015(b) or (c).

     Section 6015(f)(1) permits relief from joint and several

liability where “it is inequitable to hold the individual liable

for any unpaid tax or a deficiency (or any portion of either)”.

We review de novo petitioner’s entitlement to equitable relief

under section 6015(f).   See Porter v. Commissioner, 132 T.C. 203,

210 (2009).

     Pursuant to section 6015(f), the Commissioner has prescribed

revenue procedure guidelines to help IRS employees determine
                                - 7 -

whether a requesting spouse is entitled to relief from joint and

several liability.    See Rev. Proc. 2003-61, 2003-2 C.B. 296,

modifying and superseding Rev. Proc. 2000-15, 2000-1 C.B. 447.

The Court consults these guidelines when reviewing the IRS’

denial of relief.    See Washington v. Commissioner, 120 T.C. 137,

147-152 (2003).

     According to Rev. Proc. 2003-61, sec. 4.01, 2003-C.B. at

297-298, a requesting spouse must satisfy threshold conditions

which include, inter alia, that the income tax liability from

which the requesting spouse seeks relief be attributable to an

item of the nonrequesting spouse, unless one of enumerated

exceptions applies.    The 2006 joint Federal income tax return

reported a tax liability of $11,875, of which $3,138 is

attributable to petitioner and none of the exceptions enumerated

in Rev. Proc. 2003-61, supra, apply.    Therefore, petitioner is

not entitled to relief from joint and several liability under

section 6015(f) for the portion of the liability that is

attributable to him.

     With regard to the remaining $8,737 of the reported tax

liability that is attributable to intervenor, and taking into

account the factors the Commissioner considers in such matters,

see Rev. Proc. 2003-61, sec. 4.02 and 4.03, 2003-2 C.B. at 298,

we find that it would not be inequitable to hold petitioner

liable for the joint and several income tax liability that arises
                                 - 8 -

from the 2006 joint Federal income tax return filed with

intervenor.    Accordingly, petitioner is not entitled to relief

from liability under section 6015(f).

     Little would be gained by burdening this opinion with a

discussion of each of the factors contained in Rev. Proc. 2003-

61, supra.    See sec. 7463(a) (last sentence).   Suffice it to note

that petitioner has not demonstrated that he would suffer

economic hardship if relief were not granted nor that he did not

know and had no reason to know that intervenor would not pay the

income tax liability.     See Rev. Proc. 2003-61, sec.

4.03(2)(a)(ii) and (iii), 2003-2 C.B. at 298.     Moreover,

petitioner agreed to and signed an installment agreement, under

which he and intervenor agreed to make monthly payments of $500

toward their joint tax liability.     Finally, given his business

and tax acumen, petitioner undoubtedly knew that he could have

filed a separate return and avoided joint and several liability

for the tax attributable to intervenor’s Social Security

disability benefits.3



     3
        In this regard, when asked by respondent’s counsel at
trial whether he knew he could file using the married filing
separately filing status petitioner replied as follows:

         MR. DAYE: Yes.

       RESPONDENT: But you chose to do married, filing jointly
anyway?

         MR. DAYE: Yes, I did.
                                 - 9 -

                           Conclusion

     We have considered all of the arguments made by petitioner,

and, to the extent that we have not specifically addressed them,

we conclude that they are without merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
