                  T.C. Summary Opinion 2010-22



                     UNITED STATES TAX COURT



          KATHERINE WITHERSPOON KANNARD, Petitioner AND
               JAMES R. KANNARD, JR., Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5633-07S.              Filed March 1, 2010.



     Katherine Witherspoon Kannard, pro se.

     James R. Kannard, Jr., pro se.

     John R. Bampfield, for respondent.



     CARLUZZO, Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, in effect for the
relevant period.
                                - 2 -

other court, and this opinion shall not be cited as precedent for

any other case.

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

relieved from a 2004 Federal income tax liability assessed

against her because she filed a joint Federal income tax return

for that year.    Consistent with respondent’s determination

denying her administrative request for relief, petitioner’s

former spouse, James R. Kannard, Jr. (intervenor), opposes

relief.

                             Background

     Some of the facts have been stipulated and are so found.

At the time the petition was filed, petitioner and intervenor

resided at separate addresses in Florida.

     Petitioner and intervenor were married in July 1988; they

separated during 2005 and were divorced in October 2007.    They

have a daughter and twin sons, all minors and all subjects of a

hostile custody dispute during the divorce proceedings.    A social

worker involved in the custody dispute described the relationship

between petitioner and intervenor as a “whirlwind of animosity”,

riddled with he-said, she-said accusations of spousal abuse,

child abuse, deception, larceny, and adultery.    From their

respective presentations at trial it is clear that the whirlwind
                                - 3 -

has lost none of its force.2    Petitioner’s unpaid Federal income

tax liability and the resultant dispute with the Internal Revenue

Service over that liability no doubt exaggerated the resentment

each feels towards the other.    The trial testimony of each was

informed not so much by any good-faith attempt to objectively

describe relevant events, but by the animosity witnessed and

described by the social worker.    Consequently, rather than accept

one version over the other, we reject as incredible their

conflicting descriptions of the same events.    That being so, our

conclusions are supported by factual findings based almost

exclusively upon stipulations, undisputed testimony, or written

records.

     Petitioner graduated with a bachelor of arts degree in

international political science from Emory University in 1988.

Starting in 2001 and at all times relevant, she was employed as a

consultant by Uniphy Management Systems (Uniphy), a company that

provides medical insurance services to physicians.

     In 1998, after interrupting his college education to serve

in the U.S. Navy, intervenor graduated with a bachelor of

science degree in electrical engineering from the University of




     2
      Hostilities carried over from disputed domestic relations
matters between former or estranged spouses surface all too
frequently in sec. 6015(e) proceedings. See, e.g., Stergios v.
Commissioner, T.C. Memo. 2009-15.
                               - 4 -

Tennessee.   Soon after graduation he accepted a position with

Honeywell International, Inc. (Honeywell), in Tampa, Florida.

     Petitioner’s and intervenor’s salaries from their respective

employers were deposited into one or the other of two joint

checking accounts, one of which was maintained at the GTE Federal

Credit Union (the GTE joint account).    These joint checking

accounts, in addition to a number of credit card accounts, were

used to pay the couple’s living expenses.

     Intervenor’s employment with Honeywell ended in February

2004.   Soon thereafter he withdrew approximately $11,000 from his

employer-based retirement plan (the pension distribution).      He

also applied for and received unemployment compensation before

starting a new job in March 2004.    The pension distribution and

unemployment compensation were deposited into the GTE joint

account.

     For each year that they were married, including 2004 and the

year of their divorce, petitioner and intervenor elected to file

a joint Federal income tax return.     The 2004 joint Federal income

tax return was prepared and electronically filed using a

computer-based income tax return preparation program (the 2004

joint return).

     The income reported on the 2004 joint return does not

include the above-referenced pension distribution or unemployment

compensation (the omitted items).    The tax shown on the 2004
                               - 5 -

joint return does not include the applicable section 72(t)

additional tax attributable to the pension distribution.

     Email communications between petitioner and intervenor

during the relevant period demonstrate that petitioner was aware

of the omitted items.

     Respondent determined a deficiency in petitioner and

intervenor’s 2004 Federal income tax and issued a notice of

deficiency to them on December 11, 2006.   The deficiency

determined in that notice of deficiency takes into account the

omitted items and the section 72(t) additional tax attributable

to the pension distribution.   Neither petitioner nor intervenor

petitioned this Court in response to that notice of deficiency,

and the deficiency and related amounts were assessed in due

course.

                           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).   Spouses electing to

do so are jointly and severally liable not only for the entire

amount of tax reported on the return, but also for any deficiency

subsequently determined as well, even if all income giving rise

to the tax liability is allocable to only one of them.   Sec.

6013(d)(3); Butler v. Commissioner, 114 T.C. 276, 282 (2000); see

sec. 1.6013-4(b), Income Tax Regs.
                                 - 6 -

     Subject to various conditions and in a variety of ways, an

individual who has made a joint return may elect to seek relief

from the joint and several liability arising from that joint

return.   Sec. 6015.

     There are three types of relief available under section

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

relief from joint and several liability, subsection (c) provides

proportionate tax relief to divorced or separated taxpayers, and

subsection (f) provides equitable relief from joint and several

liability if relief is not available under subsection (b) or (c).

     Petitioner requests relief under all of the above-referenced

subsections of section 6015.     Because she was aware of the

omitted items, however, she is not entitled to relief under

subsection (b) or (c).   See sec. 6015(b)(1)(C), (c)(3)(C);

Stevens v. Commissioner, 872 F.2d 1499, 1505 (11th Cir. 1989),

affg. T.C. Memo. 1988-63; Charlton v. Commissioner, 114 T.C. 333,

341 (2000); Bokum v. Commissioner, 94 T.C. 126, 148 (1990), affd.

992 F.2d 1132 (11th Cir. 1993).     That being so, we consider, de

novo, her entitlement to equitable relief under subsection (f).

Porter v. Commissioner, 132 T.C. __ (2009).

     A taxpayer is entitled to section 6015(f) relief if, taking

into account all the facts and circumstances, it would be

inequitable to hold the taxpayer liable for any unpaid tax or

deficiency.   Sec. 6015(f)(1).    Taking into account the factors
                                 - 7 -

the Commissioner considers in matters such as this, see Rev.

Proc. 2003-61, 2003-2 C.B. 296, we find that it would not be

inequitable to hold petitioner liable for joint and several

income tax liability that arises from the joint 2004 Federal

income tax return filed with intervenor, and therefore petitioner

is not entitled to relief from that liability under section

6015(f).

     Little would be gained by burdening this opinion with a

discussion of each of the factors contained in the above-

referenced revenue procedure.    See sec. 7463(a) (last sentence).

Suffice it to note that petitioner’s actual knowledge of the

omitted items, although not determinative, weighs heavily against

relief, see Stolkin v. Commissioner, T.C. Memo. 2008-211; Rev.

Proc. 2003-61, sec. 4.03(2)(a)(iii), 2003-2 C.B. at 298, as does

her failure to establish that:    (1) She did not significantly

benefit from the omitted income; or (2) she would suffer economic

hardship if she were required to pay the 2004 income tax

liability.

     To reflect the foregoing,


                                         Decision will be entered

                                 for respondent.
