                   T.C. Summary Opinion 2004-116



                       UNITED STATES TAX COURT



               MILTON M. SCARBOROUGH, Petitioner, AND
           JUDY H. SCARBOROUGH BARRENTINE, Intervenor v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6135-03S.              Filed August 26, 2004.



     Milton M. Scarborough, pro se.

     Judy H. Scarborough Barrentine, pro se.

     Marshall R. Jones and Robert W. West, for respondent.


     HALPERN, Judge:    This case was heard pursuant to section

7463.1   The case arises from a request for relief made by

petitioner of respondent pursuant to section 6015 for relief from



     1
        Unless otherwise noted, all section references are to the
Internal Revenue Code as currently in effect, and Rule references
are to the Tax Court Rules of Practice and Procedure. All dollar
amounts have been rounded to the nearest dollar.
                                - 2 -

joint and several liability for Federal income tax for

petitioner’s 1999 taxable year.   Petitioner made such request by

submitting a Form 8857, Request for Innocent Spouse Relief, dated

March 28, 2001 (the request).   Respondent denied the request by

notice of determination dated January 21, 2003.     On April 23,

2003, petitioner timely filed a petition for review of

respondent’s determination (the petition).     On September 23,

2003, Judy H. Scarborough Barrentine, petitioner’s former wife

(intervenor), timely elected to intervene in this proceeding.

     The sole issue before us is whether respondent abused his

discretion in denying the request.      We conclude that he did not.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.

                            Background

     Some facts have been stipulated and are so found. The

stipulation of facts, with accompanying exhibits, is incorporated

herein by this reference.

     At the time the petition was filed, petitioner resided in

Yazoo City, Mississippi.

     Petitioner and intervenor made a joint return of Federal

income tax (the return) for their 1999 taxable (calendar) year.

The return shows gross income of $82,580, of which only $19,977

(24 percent) is attributable to intervenor.     The return also

shows total tax due of $14,972 and withholding credits of $3,431,
                                - 3 -

leaving a balance due of $11,541.   Petitioner and intervenor

signed the return on April 11, 2000, and it was received by

respondent on April 15, 2000.   No payment accompanied the return.

     Petitioner and intervenor separated on February 1, 2000, and

intervenor filed for divorce on March 29, 2000.   Petitioner and

intervenor divorced on March 9, 2001.   Among other things, a

property settlement agreement (the settlement agreement) entered

into by petitioner and intervenor in connection with the divorce

provides: “[Petitioner and intervenor] shall equally will [sic]

be responsible for paying the [1999] tax liability owed to the

Internal Revenue Service in the approximate amount of $14,000.”

     On the request, petitioner concedes an underpayment of tax

for 1999.   On March 28, 2001, the date he made the request,

petitioner paid $5,753 to respondent to be credited against the

unpaid 1999 liability and claimed credit in the amount of $500

for two previous payments (the total of the three payments being

$6,253), which petitioner claimed satisfied his one-half of the

then outstanding tax liability.   Petitioner requested “equitable

relief” from the remaining 1999 liability.   Petitioner based his

request on his belief that the settlement agreement obligated him

to pay only one-half of the 1999 tax liability.

     Respondent’s principal reason for denying the request was

his disagreement with the petitioner that the settlement
                                 - 4 -

agreement limited petitioner’s liability (as between him and

intervenor) to one-half of the 1999 tax liability.

                               Discussion

I.   Introduction

      As a general rule, spouses making joint Federal income tax

returns are jointly and severally liable for all taxes shown on

the return or found to be owing.     Sec. 6013(d)(3).   In certain

situations, however, a joint return filer can avoid such joint

and several liability by qualifying for relief therefrom under

section 6015.   There are three types of relief available under

section 6015: (1) full or apportioned relief under section

6015(b); (2) proportionate tax relief for divorced or separated

taxpayers under section 6015(c); and (3) equitable relief under

section 6015(f), when relief is unavailable under either section

6015(b) or (c).     Petitioner’s only claim is that he is entitled

to equitable relief under section 6015(f).

      SEC. 6015(f) provides:

           (f) Equitable relief.--Under procedures prescribed
      by the Secretary, if–-

                  (1) taking into account all the facts
           and circumstances, it is inequitable to hold
           the individual liable for any unpaid tax or
           any deficiency (or any portion of either);
           and

                  (2) relief is not available to such
           individual under subsection (b) or (c), the
           Secretary may relieve such individual of such
           liability.
                                 - 5 -

     The parties agree that petitioner is eligible to be

considered for equitable relief under section 6015(f) because

relief is not available to the petitioner under section 6015(b)

or (c).   They disagree whether, under the facts and circumstances

presented to respondent, it was inequitable for respondent to

deny petitioner relief from joint and several liability.

     We have jurisdiction to review respondent's denial of

petitioner's request for equitable relief under section 6015(f).

Jonson v. Commissioner, 118 T.C. 106, 125 (2002), affd. 353 F.3d

1181 (10th Cir. 2003); Butler v. Commissioner, 114 T.C. 276, 292

(2000).   We review such denial of relief to decide whether

respondent abused his discretion by acting arbitrarily,

capriciously, or without sound basis in fact.      Jonson v.

Commissioner, supra at 125; Butler v. Commissioner, supra at 292.

Whether respondent abused his discretion in denying petitioner

relief presents a question of fact.      See Cheshire v.

Commissioner, 115 T.C. 183, 198 (2000), affd. 282 F.3d 326 (5th

Cir. 2002).     Petitioner bears the burden of proving that

respondent abused his discretion.     See Washington v.

Commissioner, 120 T.C. 137, 146 (2003); see also Alt v.

Commissioner, 119 T.C. 306, 311 (2002) ("Except as otherwise

provided in section 6015, petitioner bears the burden of proof"),

affd. 101 Fed. Appx. 34 (6th Cir. 2004); Jonson v. Commissioner,

supra at 125.
                                - 6 -

II.    Revenue Procedure (Rev. Proc.) 2000-15

       As directed by section 6015(f), the Commissioner has

prescribed procedures to determine whether a taxpayer qualifies

for relief from joint and several liability on equitable grounds.

Those procedures are set forth in Rev. Proc. 2000-15, 2000-1 C.B.

447.    This Court has upheld the use of those procedures in

reviewing a negative determination.     See Washington v.

Commissioner, supra at 147; Jonson v. Commissioner, supra at 125.

       Section 4.01 of Rev. Proc. 2000-15 lists seven conditions

(threshold conditions) that must be satisfied before the

Commissioner will consider a request for relief under section

6015(f).    If the threshold conditions are satisfied, relief will

ordinarily be granted under circumstances described in section

4.02 of Rev. Proc. 2000-15.    If that section does not apply, the

Commissioner looks to section 4.03 of Rev. Proc. 2000-15 to

determine whether the taxpayer should be granted equitable

relief.

       Section 4.03(1) of Rev. Proc. 2000-15 lists six factors that

the Commissioner will consider as weighing in favor of granting

relief for an unpaid liability (positive factors), and section

4.03(2) lists six factors that the Commissioner will consider as

weighing against granting relief for an unpaid liability

(negative factors).    Four of the six factors in each group are

common to both groups, so that the presence or absence of the
                               - 7 -

factor will (except in one circumstance) necessarily be

considered positive or negative.2    With regard to the remaining

two factors in each group, the absence of the factor is

considered neutral by the Commissioner.3    Because four factors

are common to both groups of six factors, there are actually

eight (4+2+2) separate and distinct factors set forth in section

4.03 of Rev. Proc. 2000-15.   No single factor is determinative,

and the list is not exhaustive.     See Washington v. Commissioner,

supra at 148; Jonson v. Commissioner, supra at 125.

     Petitioner meets the threshold conditions set forth in

section 4.01 of Rev. Proc. 2000-15 but does not satisfy the

conditions set forth in section 4.02.    We must therefore consider

the eight separate and distinct factors set forth in section 4.03

of Rev. Proc. 2000-15.   Although respondent’s Appeals officer

based his determination principally on his conclusion that the

settlement agreement did not limit petitioner’s liability to one-

half of the 1999 liability, and he did not specifically address


     2
        One of the reciprocal factors is that “[t]he
nonrequesting spouse has a legal obligation pursuant to a divorce
decree or agreement to pay the outstanding liability” (positive)
or, conversely, that the requesting spouse bears that obligation
(negative). If neither spouse bears the obligation, the
resulting absence is necessarily neutral.
     3
        In Ewing v. Commissioner, 122 T.C. 32, 45 (2004), we
stated that we consider the absence of significant benefit to be
a factor favoring relief (the Commissioner only considers such
absence to be neutral). Since, as discussed infra, there is no
evidence one way or the other concerning significant benefit, we
may treat that factor as neutral for purposes of this report.
                                - 8 -

all eight factors in his case memorandum, we shall consider all

eight factors.   We reach the following conclusions:

     – Marital status.    At the time petitioner made the request,

he was divorced from intervenor, which is considered a positive

factor.

     – Economic hardship.    Petitioner failed to show economic

hardship, which failure is considered a negative factor.

     – Abuse.    Petitioner failed to show abuse, which failure is

considered a neutral factor.

     – No knowledge or reason to know.      Petitioner failed to show

that, at the time he signed the 1999 return, he had no knowledge

or reason to know that intervenor would not pay the 1999 tax

liability.   Petitioner signed the 1999 return after he and

intervenor had separated and after intervenor had filed for

divorce.   Putting aside any ambiguity in the settlement

agreement, that agreement was not entered into until almost 11

months after the return was filed.      Petitioner’s reliance on the

settlement agreement to show that he believed intervenor would

pay one-half of the 1999 liability is therefore misplaced.     This

factor is negative.

     – Legal obligation of nonrequesting spouse.      The settlement

agreement is ambiguous, and respondent did not abuse his

discretion in considering this factor to be neutral.
                                 - 9 -

       – Attributable to nonrequesting spouse.    Petitioner has

failed to show that the remaining 1999 liability is solely

attributable to intervenor; conversely, he has failed to

establish the extent to which such liability is not attributable

to him.    This factor is negative.

       – Significant benefit.   There is no evidence bearing upon

whether petitioner did or did not significantly benefit from the

unpaid 1999 liability.    This factor is neutral.

       – Noncompliance with Federal tax laws.    There is no evidence

regarding petitioner’s compliance with Federal income tax laws in

the tax years following 1999.    This factor is neutral.

       Of the factors listed in section 4.03 of Rev. Proc. 2000-15,

one is positive, three are negative, and four are neutral.

Petitioner has brought to our attention no circumstances beyond

those encapsulated by the section 4.03 factors.     Our own

judgment, considering those factors, is that it is not

inequitable to hold petitioner liable for the unpaid 1999

liability.    Respondent therefore did not act arbitrarily,

capriciously, or without sound basis in fact by not granting

petitioner relief from that liability.

III.    Conclusion

       Respondent did not abuse his discretion in denying

petitioner equitable relief from the unpaid 1999 liability.
                        - 10 -

To reflect the foregoing,


                                  Decision will be entered

                             for respondent.
