                  T.C. Summary Opinion 2006-150



                     UNITED STATES TAX COURT



    DONNA G. FAIRCLOTH, f.k.a. DONNA G. MURRAY, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16814-04S.               Filed September 14, 2006.



     Donna G. Faircloth, f.k.a. Donna G. Murray, pro se.

     Monica J. Miller, for respondent.




     COUVILLION, Special Trial Judge: This case was heard

pursuant to section 7463 in effect when 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, subsequent section references
are to the Internal Revenue Code as amended.
                               - 2 -

     The issue for decision is whether, under section 6015(g),

petitioner is entitled to a credit or refund by virtue of having

been granted relief from joint liability under section 6015(c)

for taxable years 1995 and 1996.2

     Some of the facts were stipulated.   Those facts, with the

annexed exhibits, are so found and are made part hereof.

Petitioner’s legal residence at the time the petition was filed

was Perry, Florida.

     The relevant facts in this case are not in dispute.   On a

joint Federal income tax return for 1995, petitioner and her

husband, Rory A. Murray, claimed a refund of $2,060.    That refund

was based on excess withholdings and a $1,091 earned income

credit.   They failed to report as income taxable wages of $564

and nonemployee compensation of $7,593 earned by Mr. Murray.     On

September 30, 1997, a notice of deficiency for the taxable year

1995 was issued to petitioner and her husband that adjusted their

income to include the two items of unreported income.   As a

result of this additional income, the earned income credit was

not allowable due to the limitation of section 32(a)(2).   The

deficiency determined in the notice of deficiency was $3,263.




     2
      Sec. 6015 applies to liabilities that arose “after July 22,
1998, and to liabilities that arose prior to July 22, 1998, that
were not paid on or before July 22, 1998,” making petitioner
eligible for relief under sec. 6015. Sec. 1.6015-8, Income Tax
Regs.
                               - 3 -

     For 1996, petitioner and her spouse filed a joint Federal

income tax return claiming an overpayment of $2,831, consisting

of $1,595 in withholdings and a $1,236 earned income credit.

That return, however, failed to include as income nonemployee

compensation of $4,469 earned by Mr. Murray and taxable wages of

$25 earned by petitioner.   A notice of deficiency for the taxable

year 1996 was thereafter issued to petitioner and her spouse that

adjusted their income to include the omitted income.    This

adjustment also caused a reduction of the earned income credit in

the amount of $884 due to the income limitations of section

32(a)(2).

     Petitioner responded to the notice of deficiency for taxable

year 1995 with a handwritten note to the IRS; however, no

petition was filed in this Court with respect to either statutory

notice.   The assessments for taxable years 1995 and 1996 were

made on February 23, 1998, and April 12, 1999, respectively.     No

payments were made on the 1995 and 1996 deficiencies.

     Petitioner sustained a work-related injury on June 1, 1995.

While petitioner was receiving treatment for the injury, her

husband was transferred to Colorado in August 2005 for work.

Petitioner remained in Florida awaiting surgery and did not

relocate to Colorado until sometime in October.

     Petitioner and her spouse did not have joint or separate

bank accounts; they paid their bills in cash or money orders.
                                - 4 -

The trial record shows that petitioner regularly opened all mail

received, but she contends that she did not maintain their

financial records nor prepare their tax returns.    Petitioner and

her spouse separated near the end of 1999.    Mr. Murray died on

October 7, 2001.   At the time of his death, no payments had been

made on the deficiencies.    Further, no Federal income tax returns

had been filed by petitioner and her spouse for the years 1997,

1998, 1999, 2000, and 2001.

     On or about October 22, 2001, collection notices were mailed

to petitioner with respect to the unpaid liabilities for 1995 and

1996.   Petitioner contacted the IRS to inform them that her

husband was deceased and that she was unable to pay the

liabilities.   She inquired what collection alternatives were

available to her and was advised that an offer-in-compromise,

installment agreement, or other collection alternative would not

be considered until petitioner brought her filing status current.

Consequently, she filed delinquent returns for taxable years

1997, 1998, 1999, 2000, and 2001 and a timely return for 2002.

The 1998, 1999, and 2001 returns reflected overpayments, which

were applied to the 1995 joint liability.

     Petitioner initially filed her 2000 return as a married

individual filing separately.    There was an amount of tax due

reported on that return.    Respondent assessed additions to tax

under section 6651 and applied a portion of her 2001 overpayment

and all of her 2002 overpayment to the tax liability for 2000.
                               - 5 -

In April 2003, petitioner filed an amended return for the 2000

taxable year reporting, as she had for taxable years 2001 and

2002, that she was entitled to head-of-household filing status.

The amended return was accepted by the IRS, which resulted in the

abatement of most of the section 6651 additions to tax, the

corresponding interest, and $977 of the tax assessed for the 2000

taxable year.   Because the liability for taxable year 2000 had

been paid in full by the application of refunds from taxable

years 2001 and 2002, there was an overpayment for the year 2000.

A small portion of this overpayment was applied to pay fully the

remainder of the 1995 joint liability, and the balance was

applied to the 1996 joint liability.

     On May 15, 2003, petitioner filed with the IRS a Form 8857,

Request for Innocent Spouse Relief, seeking relief from the 1995

and 1996 joint tax liabilities.   Respondent issued a notice of

determination granting petitioner partial relief under section

6015(c) of the joint 1995 and 1996 tax liabilities.3   The notice

also stated that refunds are not allowed with respect to relief

from joint liability granted under section 6015(c).



     3
      Petitioner was denied relief with respect to the 1996 tax
attributable to her $25 in unreported income and the recapture of
the earned income credit because an allocation of the latter is
not permitted. Sec. 1.6015-3(d)(2)(i), Income Tax Regs. The
liabilities generated from the earned income credits had been
paid by her overpayments from the delinquent returns, so
application of sec. 6015(c) relieved petitioner of all remaining
unpaid balances.
                                - 6 -

       Petitioner filed timely a petition with this Court in which

she seeks a refund of the overpayments from her subsequent tax

returns that were applied towards her joint tax liabilities for

taxable years 1995 and 1996.    Respondent contends that a refund

is barred because of section 6015(g)(3).

       Section 6015, as amended, was enacted in 1998 to replace

former section 6013(e).    Internal Revenue Service Restructuring

and Reform Act of 1998, Pub. L. 105-206, sec. 3201, 112 Stat.

734.    Section 6015 provides relief from joint and several

liability for certain taxpayers who file a joint Federal income

tax return.    In general terms, there are three avenues of relief

under section 6015:    Section 6015(b) provides relief with respect

to certain erroneous items on the return, section 6015(c)

provides for a separation of liability for separated taxpayers,

and section 6015(f) provides equitable relief for taxpayers who

otherwise do not qualify for relief under either of the

aforementioned provisions.    As a general rule, taxpayers who

qualify for relief under section 6015(b) or (f), but not section

6015(c), are entitled to a refund or credit attributable to the

application of section 6015 as to the tax years for which relief

was granted.    Sec. 6015(g)(1), (3).   A taxpayer may petition this

Court for a review of the Commissioner’s determination of the

relief available to the taxpayer.    Sec. 6015(e)(1)(A).   This

Court’s jurisdiction in cases brought under section 6015(e)(1)
                               - 7 -

encompasses a review of the Commissioner’s determination with

respect to relief afforded by section 6015(c).   Fernandez v.

Commissioner, 114 T.C. 324, 331 (2000).   Thus, this Court has

jurisdiction to review the Commissioner’s determination that no

refund is due to a taxpayer under section 6015(g)(3).

     Section 6015(c) is the basis upon which relief was granted

to petitioner.   Section 6015(g) provides generally for the

allowance of credits and refunds in certain situations where

relief from joint liability is granted under section 6015.

However, section 6015(g)(3) states that no refund or credit shall

be allowed as a result of an election for relief under subsection

(c), and where the relief is granted pursuant to subsection (c).

The record shows that petitioner was not entitled to relief under

section 6015(b) because she had constructive knowledge of income

that was reported on the 1995 and 1996 joint returns, nor was she

entitled to any other relief except under section 6015(c).4

     Petitioner argues that she is entitled to a refund because,

although she was told that filing delinquent returns was a

necessary predicate to consideration of collection alternatives,

the IRS did not suggest that she first request relief under




     4
      Petitioner would be eligible for relief under sec. 6015(f)
only if it were shown that, contrary to respondent’s
determination, petitioner is not entitled to relief under sec.
6015(c). Sec. 6015(f)(2).
                               - 8 -

section 6015 prior to filing her delinquent returns.5     The law is

well settled that the Commissioner is not estopped and is not

bound by erroneous acts, representations, or omissions of his

agents.   Authoritative tax law is contained in statutes,

regulations, and judicial decisions.      Zimmerman v. Commissioner,

71 T.C. 367, 371 (1978), affd. without published opinion 614 F.2d

1294 (2d Cir. 1979); Green v. Commissioner, 59 T.C. 456, 458

(1972).   Any representation, advice, or omission of advice made

to petitioner by an agent or representative of the IRS does not

entitle petitioner to a credit or refund of taxes paid on the

assessment if the relief was granted under section 6015(c).

Section 6015(g)(3) clearly provides that relief granted under

section 6015(c) does not allow the taxpayer a refund or credit

for payments made on the deficiency.     Respondent, therefore, is

sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.


     5
      Respondent does not disagree that filing an application for
relief from joint liability and consideration of that request are
not conditioned on the filing of returns for subsequent years.
Had petitioner requested and been granted relief from joint
liability for the 1995 and 1996 taxes before she filed delinquent
returns for 1998 through 2001, the overpayments reflected on the
delinquent returns could have been refunded to her rather than
applied to the 1995 and 1996 liabilities.
