                        T.C. Memo. 2004-243



                      UNITED STATES TAX COURT



                 THOMAS F. NOONS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15052-02.              Filed October 26, 2004.


     James A. Cerks, for petitioner.

     Susan M. Pinner, for respondent.



                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(5) and Rules 180, 181, and 183.1     The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

                 OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:    This matter is before the Court

on respondent’s motion for summary judgment filed pursuant to

Rule 121.   The parties agree that there is no dispute as to any

material fact.   Respondent contends that his determination

denying petitioner’s request for relief from joint and several

liability should be sustained as a matter of law.

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”   Rule 121(a) and (b); see

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753,

754 (1988); Naftel v. Commissioner, 85 T.C. 527, 529 (1985).

     As explained in detail below, there is no genuine issue as

to any material fact, and a decision may be rendered as a matter

of law.   Accordingly, we shall grant respondent’s motion for

summary judgment.
                                 - 3 -

                              Background

     The record establishes and/or the parties do not dispute the

following facts:

     Petitioner filed a joint Federal income tax return with his

former wife, Toyia A. Pena (formerly known as Toyia A. Noons)

(Ms. Pena), for the taxable year 1993.

     On March 19, 1998, respondent issued a notice of deficiency

to petitioner and Ms. Pena for the taxable year 1993.2     In the

notice of deficiency, respondent determined a deficiency in

Federal income tax and an addition to tax for the taxable year

1993 in the amounts of $35,080 and $2,490, respectively.

        On June 22, 1998, petitioner and Ms. Pena commenced a case

in this Court at docket No. 11163-98 challenging respondent’s

deficiency determinations, which case was tried to the Court on

May 17, 1999, in Houston, Texas (prior proceeding).      Petitioner

and Ms. Pena were represented at trial in the prior proceeding by

James A. Cerks.3    At that trial, petitioner testified as the only

witness.     In Noons v. Commissioner, T.C. Memo. 2000-106, the

Court sustained respondent’s deficiency determinations, and we

entered decision on March 29, 2000.      Petitioner and Ms. Pena did

not appeal, and our decision became final on June 27, 2000.


     2
      When respondent issued the notice, petitioner and Ms. Pena
were already divorced.
     3
        Mr. Cerks is also representing petitioner in the instant
case.
                                - 4 -

Secs. 7481(a)(1), 7483.    At no time during the prior proceeding

did petitioner assert a claim for relief from joint and several

liability.

     On January 6, 2001, petitioner filed with respondent Form

8857, Request for Innocent Spouse Relief (And Separation of

Liability and Equitable Relief), with respect to the taxable year

1993.    Petitioner attached to Form 8857 a copy of his and Ms.

Pena’s divorce decree upon which decree he claims that he is

entitled to relief from liability under section 6015.

     On June 19, 2002, respondent issued to petitioner a final

notice of determination denying petitioner’s claim for relief

under section 6015(b), (c), and (f).

     Petitioner timely filed with the Court a petition for

determination of relief from joint and several liability for the

taxable year 1993.4

     Respondent filed a motion for summary judgment on the ground

that section 6015(g)(2) bars petitioner from relief under section

6015.    Petitioner filed an objection to respondent’s motion

alleging, inter alia, that section 6015(g)(2) does not apply in

the instant case to preclude him from claiming relief under




     4
      At the time that the petition was filed, petitioner resided
in Houston, Texas.
                                - 5 -

section 6015(f).5   Pursuant to notice, this matter was called for

hearing at the Court’s trial session in Houston, Texas.   Counsel

for respondent appeared at the hearing and offered argument in

support of the motion for summary judgment.   Mr. Cerks entered an

appearance on behalf of petitioner at the hearing and argued

against respondent’s motion.6

                            Discussion

     Generally, spouses filing a joint Federal income tax return

are jointly and severally liable for all taxes due.   Sec.

6013(d)(3).   Section 6015 provides, however, that a spouse may

seek relief from joint and several liability on a joint return

under certain circumstances.7   Section 6015 encompasses three

types of relief: (1) Subsection (b) provides full or apportioned

relief from joint and several liability; (2) subsection (c)

provides proportionate tax relief to divorced or separated

taxpayers; and (3) subsection (f) provides equitable relief from



     5
      Petitioner concedes that he is not eligible for relief
under either sec. 6015(b) or (c).
     6
      Petitioner was also present at the hearing.
     7
      The Internal Revenue Service Restructuring and Reform Act
of 1998 (RRA 1998), Pub. L. 105-206, sec. 3201(a), 112 Stat. 734,
repealed sec. 6013(e) and replaced it with sec. 6015, which
provides spouses with a broader access to relief from joint and
several liability on a joint return. See H. Conf. Rept. 105-599,
at 249 (1998), 1998-3 C.B. 747, 1003. Sec. 6015 applies to any
liability for tax arising after July 22, 1998, and to any
liability for tax arising on or before July 22, 1998, and unpaid
as of that date. RRA 1998 sec. 3201(g), 112 Stat. 740. Sec.
6015, therefore, applies in the instant case.
                                - 6 -

joint and several liability in certain circumstances if neither

section 6015(b) nor (c) is available.

     The doctrine of res judicata, however, may preclude a

taxpayer from obtaining relief under section 6015.    The judicial

doctrine of res judicata provides that when a court of competent

jurisdiction enters a final judgment on the merits of a cause of

action, the parties to the action are bound “not only 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); see

Wooten v. Commissioner, T.C. Memo. 2003-113.   Because Federal

income taxes are determined on an annual basis, each year is a

separate cause of action, and res judicata is applied to bar

subsequent proceedings involving the same tax year.    Commissioner

v. Sunnen, supra at 597-598; Calcutt v. Commissioner, 91 T.C. 14,

21 (1988).

     With regard to claims for relief from joint and several

liability, section 6015(g)(2) provides in pertinent part:

          Res Judicata.--In the case of any election under
     subsection (b) or (c), if a decision of a court in any
     prior proceeding for the same taxable year has become
     final, such decision shall be conclusive except with
     respect to the qualification of the individual for
     relief which was not an issue in such proceeding. The
     exception contained in the preceding sentence shall not
                              - 7 -

     apply if the court determines that the individual
     participated meaningfully in such prior proceeding.[8]

     As previously indicated, respondent contends that respondent

is entitled to judgment as a matter of law.   Respondent argues

that section 6015(g)(2) bars petitioner from claiming relief from

joint and several liability under section 6015.   Specifically,

respondent maintains that petitioner participated meaningfully in

the prior proceeding, and that petitioner failed to raise a claim

for relief under section 6015 in the prior proceeding.

Consequently, respondent contends that section 6015(g)(2)

precludes petitioner from claiming relief from joint and several

liability in the instant proceeding.9

     Petitioner objects to respondent’s motion on the ground that

section 6015(g)(2) does not apply in the instant case.

Specifically, petitioner contends that the statutory language of

section 6015(g)(2) “expressly refers only to elections under

subsection (b) or (c) of IRC Section 6015 and expressly omits

subsection (f) EQUITABLE RELIEF OF IRC Section 6015 from being

barred by the doctrine of Res Judicata”.   Petitioner thus


     8
      Petitioner does not dispute that he participated
meaningfully in the prior proceeding.
     9
      We note that in support of his contention, respondent
relies on regulations issued under sec. 6015. The regulations
issued under sec. 6015 apply to claims for relief filed on or
after July 18, 2002. Sec. 1.6015-9, Income Tax Regs. The
regulations issued under sec. 6015 are inapplicable in the
instant case because petitioner filed his claim on Jan. 6, 2001.
                                 - 8 -

contends that the doctrine of res judicata does not preclude him

from claiming equitable relief under section 6015(f).     We

disagree.

     This Court has already rejected petitioner’s precise

contention in a previous case.    In Thurner v. Commissioner, 121

T.C. 43, 51-52 (2003), the Court concluded that a claim for

equitable relief under section 6015(f) is subordinate and

ancillary to a claim for relief under section 6015(b) or (c),

and, therefore, that section 6015(f) is subject to the same

standards for the application of the doctrine of res judicata

imposed under section 6015(g)(2).    See Fernandez v. Commissioner,

114 T.C. 324, 330-331 (2000).    In Thurner v. Commissioner, supra,

the Court thus held that the doctrine of res judicata as

delineated in section 6015(g)(2) with respect to claims for

relief from joint and several liability applies equally to claims

for relief under section 6015(b), (c), and (f).     Accordingly, we

also reject petitioner’s same contention in the instant case.

     Petitioner litigated the merits of respondent’s notice of

deficiency at trial on May 17, 1999, in Houston, Texas.

Thereafter, a decision was entered that petitioner and Ms. Pena

were liable for income tax of $35,080 and an addition to tax of

$2,490.   Petitioner and Ms. Pena did not appeal that decision,

which became final.   See secs. 7481(a)(1), 7483.   The causes of

action that form the basis for this case and the prior proceeding
                               - 9 -

are identical; i.e., petitioner’s tax liability for 1993.

Petitioner was represented by counsel in the prior proceeding,

and petitioner testified as the only witness in the case.    In

light of these undisputed facts, petitioner meaningfully

participated in the prior proceeding.   Moreover, petitioner did

not, at any time during the prior proceeding, claim relief under

section 6015.10   At the beginning of the trial, the Court

questioned the parties whether Ms. Pena was seeking relief from

joint and several liability.   Thus, petitioner was made aware

that he could have raised a claim for relief from joint and

several liability, but he failed to do so.

     Nevertheless, petitioner contends that his case presents

special circumstances that overcome the bar of res judicata.

Petitioner argues that there was uncertainty regarding the law

during the pendency of the prior proceeding.   Petitioner asserts

that between the date that he filed the petition in the prior

proceeding (June 22, 1998) and the date of trial (May 17, 1999),

respondent had failed to publish specific guidance (and had

failed to inform petitioner) that the res judicata effect of

section 6015(g)(2) might have a serious adverse effect on

petitioner’s right to claim relief from joint and several

     10
      In a petition for redetermination of a deficiency under
sec. 6213(a), a taxpayer may seek relief from joint and several
liability on a joint return by raising the matter as an
affirmative defense. Butler v. Commissioner, 114 T.C. 276, 287-
289 (2000).
                               - 10 -

liability in the future.    In support of his position, petitioner

relies on Trent v. Commissioner, T.C. Memo. 2002-285.    We

disagree with petitioner’s contention.

     In Trent v. Commissioner, supra, the taxpayer filed a

petition for redetermination of a deficiency with the Court and

then met with an Appeals officer to settle the case, which

meeting occurred 10 days before the effective date of section

6015.   In that meeting, the taxpayer raised an innocent spouse

defense, but the Appeals officer informed the taxpayer that then

was not the time to raise the defense.    At the time of the

meeting, the taxpayer and the Appeals officer were unaware of the

res judicata effect of closing a deficiency case in light of the

uncertainty of the law.    The taxpayer signed a stipulated

decision, which was entered in December 1998, and subsequently

submitted a Form 8857 in May 1999, which respondent denied.    The

Court concluded that special circumstances existed to overcome

the bar of res judicata in that petitioner was misled by an

apparent misunderstanding on her part and on the part of the

Appeals officer from raising a claim for joint and several

liability in the prior proceeding.

     The special circumstances in Trent v. Commissioner, supra,

are distinguishable from the facts of this case.    In the instant

case, the petition in the prior proceeding was filed before the

effective date of section 6015, but, more significantly, the
                               - 11 -

trial was held on May 17, 1999, well after the effective date of

section 6015.11   We find it remarkable that petitioner argues

that he was not aware that he had to claim relief from joint and

several liability at trial because under the prior law, in

petitioner’s belief, such claim was typically submitted after

trial, which belief is clearly erroneous.   Indeed, the matter was

called to the parties’ attention in the prior proceeding when the

Court inquired whether Ms. Pena would be claiming relief from

joint and several liability (which she did not).   Petitioner was

on notice that he also could raise a claim for joint and several

liability, but he did not.   As such, it follows that section

6015(g)(2) precludes petitioner from claiming relief from joint

and several liability under section 6015(f).

     For the reasons stated, we shall grant respondent’s motion

for summary judgment.

     We have considered all of the other 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,



                                         An appropriate order and

                                    decision will be entered.

     11
      It might also be mentioned that although Ms. Trent
appeared pro se in her deficiency action, petitioner was
represented by counsel in his deficiency action.
