                        T.C. Memo. 2007-156



                      UNITED STATES TAX COURT



                VICTORIA RAE MOORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7878-06.               Filed June 19, 2007.



     Victoria Rae Moore, pro se.

     Nhi T. Luu, for respondent.



                        MEMORANDUM OPINION


     GERBER, Judge:   In a petition filed April 27, 2006,

petitioner alleged that respondent abused his discretion in

denying her relief under section 60151 from joint income tax



     1
        All section references are to the Internal Revenue Code
in effect for the period under consideration, and all Rule
references are to the Tax Court’s Rules of Practice and
Procedure, unless otherwise indicated.
                               - 2 -

liabilities for 1992, 1993, 1994, and 1997.   On October 4, 2006,

respondent’s Motion for Summary Judgment was filed.       The issues

remaining for our consideration are (1) whether this case is ripe

for summary judgment; and (2) whether petitioner is barred by the

doctrine of res judicata from seeking section 6015 relief, or

more particularly, whether she “meaningfully participated” in two

prior Tax Court proceedings which resolved her tax liabilities

for the 1992, 1993, 1994, and 1997 tax years.

                          Background

     Petitioner and her former husband (the Moores) filed joint

Federal income tax returns for their taxable years 1992, 1993,

1994, and 1997.   On each of those joint returns, the Moores

claimed partnership losses from cattle breeding.    The

partnerships were formed, promoted, and operated by Walter J.

Hoyt, III.2




     2
         From about 1971 through 1998, Hoyt organized, promoted,
     and operated more than 100 cattle breeding partnerships.
     Hoyt also organized, promoted, and operated sheep breeding
     partnerships. From 1983 to his subsequent removal * * *
     [around 2000], Hoyt was the tax matters partner of each Hoyt
     partnership. From approximately 1980 through 1997, Hoyt was
     a licensed enrolled agent, and as such, he represented many
     of the Hoyt partners before the Internal Revenue Service
     (IRS). In 1998, Hoyt’s enrolled agent status was revoked.
     Hoyt was convicted of various criminal charges in 2000.

     Johnson v. Commissioner, T.C. Memo. 2007-29.
                              - 3 -

     By means of an October 2, 1996, determination, respondent

disallowed the Moores’ claimed partnership losses and determined

income tax deficiencies, additions to tax, and penalties for the

taxable years 1992, 1993, and 1994.   By means of an October 30,

2002, determination, respondent disallowed the Moores’ claimed

partnership losses for 1997 and determined an income tax

deficiency and penalties for that year.   The Moores carried back

some of those losses to their 1987 through 1991 tax years.

     On December 23, 1996, the Moores petitioned the Tax Court

seeking review of respondent’s October 2, 1996, determination.

That case was assigned docket No. 27274-96.   Among other

allegations, the Moores contended in docket No. 27274-96 that the

3-year period for assessment had expired, but no claim for relief

was alleged under section 6013(e).3   Initially, the Moores were

pro se in docket No. 27274-96 and on July 27, 1998, entries of

appearance were filed on behalf of the Moores by Attorneys Wendy

S. Pearson and Terri A. Merriam.   Attorney Merriam filed an

amendment to the petition on August 24, 1998, alleging an

alternative legal theory, but no mention of section 6013(e) or

innocent spouse relief was contained in the amended pleading.




     3
       Sec. 6013(e) was the predecessor to sec. 6015 allowing,
under certain circumstances, relief from joint and several tax
liability. At times, these provisions were referred to as
“innocent spouse” provisions.
                               - 4 -

     On July 30, 2002, Jennifer A. Gellner filed an entry of

appearance on behalf of the Moores in docket No. 27274-96, and on

that same date she filed a status report with the Court.    On

January 27, 2003, Attorneys Pearson, Merriam, and Gellner, filed

a petition regarding the Moores’ 1997 tax year in response to the

October 30, 2002, notice issued by respondent.   That case was

assigned docket No. 1460-03.   In that petition it was alleged

that the Moores were entitled to a theft loss for 1997, but no

section 6015 relief from joint and several liability was alleged.

     On August 7, 2003, respondent’s counsel in docket No. 1460-

03 sent a letter to the Moores’ attorneys listing the issues in

that case and asking whether the list was accurate and complete.

Relief from joint and several tax liability was not listed as an

issue in the case.   It was also requested that the letter be

forwarded to petitioner and her husband if their attorneys

withdrew from the case.   On August 14, 2003, Attorneys Pearson,

Merriam and Gellner moved to withdraw as counsel of record, and

their motions were granted August 18, 2003.

     Thereafter, respondent sent petitioner two letters (August

25 and September 5, 2003) requesting that respondent be notified

of petitioner’s position in the case.   In a letter dated

September 4, 2003, petitioner stated:   “I feel I should get the

same settlement that the other Hoyt partners get” and “I was an
                               - 5 -

innocent spouse and didn’t find out until years later it was a

scam.”

     On September 8, 2003, respondent’s counsel mailed petitioner

a letter, with respect to both docketed cases, advising that if

she believed she was entitled to section 6015 relief, she should

amend her pleadings.   In addition, respondent’s counsel sent

petitioner a copy of the text of section 6015 along with that

letter.   On September 18, 2003, respondent’s counsel spoke with

petitioner by telephone to arrange a meeting, and in that

conversation, petitioner acknowledged that she had read section

6015 provided with the September 8, 2003, letter.   A pretrial

meeting was held on September 30, 2003, and at that meeting

petitioner informed respondent’s counsel that she would notify

respondent if she intended to concede the two Tax Court cases.

     On October 9, 2003, petitioner engaged in a telephone

conversation with Mr. Moore, respondent’s counsel, and the Court.

During that conversation, respondent’s counsel advised the Court

that she believed that the assessments of the tax for the taxable

years 1987 through 1991 might have been barred by the running of

the period for assessment.   Thereafter, both of petitioner’s

cases were set for trial on July 26, 2004, at Portland, Oregon.

On April 29, 2004, respondent’s counsel spoke with petitioner,

who advised that she intended to settle the pending cases.    On

May 18, 2004, respondent conceded, by means of an amended answer,
                               - 6 -

the period for assessment had expired with respect to the Moores’

tax years 1987 through 1991.

     Petitioner and Mr. Moore executed settlement documents

resolving all of the issues in the cases pending before the

Court.   On August 6 and August 11, 2004, the Court entered

decisions in the cases bearing docket Nos. 27274-96 and 1460-03,

respectively, setting forth income tax deficiencies and penalties

for tax years 1992, 1993, 1994, and 1997.   On December 28, 2004,

the income tax deficiencies and penalties were assessed against

petitioner for her 1992, 1993, 1994, and 1997 tax years.

     On or about August 9, 2005, petitioner, by means of a Form

8857, Request for Innocent Spouse Relief, sought relief from

joint and several liability for her 1992, 1993, 1994, and 1997

tax years.4   Following respondent’s denial, petitioner filed a

petition with this Court instituting this proceeding.

                           Discussion

     Petitioner was a participant in two prior Tax Court

proceedings in which she and Mr. Moore ultimately agreed to

income tax deficiencies and penalties.   Based on the Moores’

agreement with respondent, the Court entered decisions for the

income tax deficiencies and penalties.   Respondent assessed the

tax and penalties, and petitioner subsequently sought relief from


     4
       Petitioner did not seek relief for years prior to 1992 due
to respondent’s concession that the period for assessment had
expired with respect to those years.
                                - 7 -

joint and several liability under section 6015 in this stand-

alone proceeding.    Respondent moved for summary judgment,

contending that petitioner is barred under the principles of res

judicata from relitigating these same tax years.

Summary Judgment

       Summary judgment is appropriate if there is no genuine issue

of material fact and a decision may be rendered as a matter of

law.    Rule 121(b); Fla. Peach Corp. v. Commissioner, 90 T.C. 678,

681 (1988).    In this case there is no apparent disagreement about

the material facts and circumstances in the controversy.

Although petitioner contends that she did not fully understand

the legal nuances and some of the procedural aspects of the

deficiency suits, there is no disagreement about what occurred.

Petitioner was informed about section 6015 and the need to amend

her pleadings prior to the time that she agreed to settle the

joint income tax liabilities for the years under consideration.

Respondent’s counsel had referenced the potential for section

6015 relief, and petitioner was sent a copy of the statute.

Petitioner does not deny those facts, but instead she contends

that she did not fully understand the legal or procedural

nuances.

       Her lack of understanding did not keep her from raising a

claim for relief in the prior Tax Court cases.    She understood

that relief was available when she settled the income tax cases.
                                - 8 -

She resolved the cases at the urging of Mr. Moore, but was

informed about the possibility of relief as an “innocent spouse”.

With that factual background, this case is ripe for resolution by

means of summary judgment.   Petitioner has made no allegations or

showing that the facts are materially different from those

presented by respondent in his summary judgment motion.   See Reid

v. Sears, Roebuck & Co., 790 F.2d 453, 459-460 (6th Cir. 1986);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250

(1986).

Res Judicata

     Respondent contends that petitioner is barred under the

principles of res judicata from seeking relief from joint and

several liability under section 6015.   There is no question that

petitioner’s claim for relief in this case involves the same

taxable years and liabilities as the deficiency suits.    There is

also no question that the parties are the same in this proceeding

as in the prior two and that the decisions in the prior

proceedings are final.

     The only question concerns whether the exception to the

principle of res judicata contained in section 6015(g)(2)

applies.   Section 6015(g)(2) provides that res judicata does not

apply if qualification of the individual for relief was not an

issue in the prior proceeding and if the individual did not

participate meaningfully.    It is petitioner’s burden to show by a
                                - 9 -

preponderance of the evidence that she did not meaningfully

participate in the prior proceedings.    Huynh v. Commissioner,

T.C. Memo. 2006-180; Monsour v. Commissioner, T.C. Memo. 2004-

190.

        A taxpayer who has filed a joint return may seek relief

from joint and several liability by following procedures

established in section 6015.    Section 6015 may apply to a tax

liability that arose after July 22, 1998, and also to a tax

liability that arose on or before such date and remained unpaid

as of July 22, 1998.    See Internal Revenue Service Restructuring

and Reform Act of 1998, Pub. L. 105-206, sec. 3201(g)(1), 112

Stat. 740; Vetrano v. Commissioner, 116 T.C. 272, 277 (2001).

       The doctrine of res judicata provides that, when a court of

competent jurisdiction enters a final judgment in a cause of

action, the parties are bound “‘not only as to every matter which

was offered and received * * * but as to any other admissible

matter which might have been offered for that purpose.’”

Commissioner v. Sunnen, 333 U.S. 591, 597 (1948) (quoting

Cromwell v. County of Sac, 94 U.S. 351, 352 (1877)).    The

doctrine also applies where the Court’s final decision was based

on an agreement between the parties.    See United States v.

Bryant, 15 F.3d 756, 758 (8th Cir. 1994).

       Section 6015(g)(2) provides that, in the case of an election

under section 6015(b) or (c) for any taxable year that is the
                              - 10 -

subject of a final court decision, such decision shall be

conclusive unless the individual’s qualification for relief was

not an issue in the prior court proceeding and the individual did

not “participate meaningfully” in the prior proceeding.    In

Vetrano v. Commissioner, supra at 278, we explained that

     an individual who participated meaningfully in a court
     proceeding is precluded from electing relief under
     section 6015(b) or (c) for the same taxable year after
     the decision of the court becomes final, whether or not
     the individual's qualification for relief under section
     6015(b) or (c) was an issue in the prior proceeding.
     * * *

     Petitioner argues that her level of involvement in the prior

case was not “meaningful” for purposes of section 6015(g)(2)

because she:   (1) Was not well informed about section 6015

relief, (2) was, at times, represented by counsel who were

representing a large group of taxpayers; and (3) she followed Mr.

Moore’s advice to settle.   In effect, petitioner contends that

she was not involved in discussions about and/or that she was not

knowledgeable about law or procedure.

     Section 1.6015-1(e), Income Tax Regs., provides:

          (e) Res judicata and collateral estoppel.--A
     requesting spouse is barred from relief from joint and
     several liability under section 6015 by res judicata
     for any tax year for which a court of competent
     jurisdiction has rendered a final decision on the
     requesting spouse's tax liability if relief under
     section 6015 was at issue in the prior proceeding, or
     if the requesting spouse meaningfully participated in
     that proceeding and could have raised relief under
     section 6015. A requesting spouse has not meaningfully
     participated in a prior proceeding if, due to the
                               - 11 -

     effective date of section 6015, relief under section
     6015 was not available in that proceeding. * * *

     In this case, petitioner and Mr. Moore were embroiled in a

protracted controversy with respondent involving their “tax

shelter” partnership losses.   The controversy covered the tax

decade including the years 1987 through 1997.   Respondent’s

counsel, in October 2003, advised the Court that the period for

assessment had expired for the 1987 through 1991 tax years, and,

ultimately, respondent conceded the disputed deficiencies

attributable to those years.   Petitioner and her husband filed

their petition pro se in the first of their deficiency suits and

then, after approximately 2 years, became represented therein by

attorneys.

     Petitioner and her husband remained represented through the

filing of the petition in their second deficiency suit until

August 2003 when their attorneys were permitted to withdraw as

counsel of record.   It was after the withdrawal of their

attorneys that settlement with the Government was discussed with

petitioner and Mr. Moore and the cases were resolved by agreement

of the parties.   Prior to executing the settlement, petitioner,

who was divorced from Mr. Moore, was sent letters from

respondent’s counsel alerting her to the need to amend her

pleadings if she wished to allege that she was entitled to relief

from the joint and several liability under section 6015.    In

addition, petitioner was sent a copy of the text of section 6015.
                             - 12 -

Petitioner engaged in a conversation about section 6015 with

respondent’s counsel, but respondent’s counsel declined to

provide petitioner with further advice about how and/or whether

to proceed to amend her pleading to allege section 6015 relief.

Petitioner also was being urged by Mr. Moore to resolve the case,

and she took his advice.

     Petitioner contends that throughout the period that these

cases were in controversy, she was not knowledgeable about law or

procedure and that she may have been poorly represented by

counsel5 and/or wrongly followed her husband’s advice.    Under

these circumstances we must decide whether petitioner’s

participation was meaningful in the prior two cases so as to

preclude her from seeking section 6015 relief in this stand-alone

proceeding.

     Generally, with respect to the application of res judicata,

the quality of advocacy and the actual knowledge of the litigants

are not special circumstances in determining whether a prior

judgment is a bar in subsequent litigation.   See Jones v. United



     5
       The implication raised by petitioner was that the
attorneys represented the interest of numerous partnership
investors and that little attention was paid to petitioner’s
individual issues. Although petitioner alludes to these
conditions, the Court was not made privy to the actual
discussions or relationship that petitioner had with her legal
representatives, and these matters remain a matter of conjecture.
For purposes of this motion for summary judgment, we assume,
arguendo, that she was not adequately advised by her attorneys
about sec. 6013(e) or sec. 6015.
                              - 13 -

States, 466 F.2d 131, 136 (10th Cir. 1972); Cory v. Commissioner,

159 F.2d 391, 392 (3d Cir. 1947), affg. a Memorandum Opinion of

this Court.   In this case, petitioner represented herself when

she agreed to settle without formally raising the question of

section 6015 relief.

     As was stated in Huynh v. Commissioner, T.C. Memo. 2006-180:

          Court cases have not yet clearly defined
     "meaningful participation" in all respects, although we
     have indicated that "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, supra at 53, but signing court documents
     and participating in settlement negotiations are
     indicators of meaningful participation. Id.; Monsour
     v. Commissioner, supra.

          In Trent v. Commissioner, T.C. Memo. 2002-285, we
     suggested that a taxpayer who participated in meetings
     with an Appeals officer and who voluntarily signed a
     decision document generally would be regarded as having
     participated meaningfully, regardless of whether the
     taxpayer was represented by counsel. [Fn. ref.
     omitted.]

     Here, petitioner was represented by counsel for an extended

period of time.   Significantly, however, after the representation

ended, petitioner was advised by respondent of the existence of

section 6015 and the need to amend her pleading if she wished to

seek relief under that Code provision.   That advice was provided

prior to the time that petitioner voluntarily agreed to settle

the outstanding issues in the two cases, which did not include

the question of relief under section 6015.   The fact that Mr.

Moore urged that she agree to resolve the controversy does not
                                - 14 -

take away from the fact that she was informed of section 6015

prior to settlement.   The fact that petitioner was informed about

section 6015, participated in meetings with respondent’s counsel

and the Court, and voluntarily entered into a settlement makes

her participation “meaningful”.

     Whether petitioner received good or bad advice from Mr.

Moore and/or her representatives does not obviate her knowledge

of the relief provisions or her opportunity to be well informed.

The exception to res judicata contained in section 6015(g)(2)

addresses the opportunity to raise and/or pursue the relief

afforded by section 6015.    Petitioner participated and had that

opportunity.   Her reasons for pursuing or not pursuing relief are

not dispositive under the statute, regulation, and case

precedent.

     Because petitioner materially participated in the prior two

cases involving the same tax years, same tax liabilities, and

same parties, she is barred from relitigating the question of

relief from those liabilities in this proceeding.

     To reflect the foregoing,

                                 An appropriate order and decision

                            will be entered granting respondent’s

                            Motion for Summary Judgment.
