                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TERESA PALOMARES, AKA Teresa                    No.    15-70659
Garcia,
                                                Tax Ct. No. 2301-13
                Petitioner-Appellant,

 v.                                             MEMORANDUM*

COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                       Argued and Submitted May 19, 2017
                              Seattle, Washington

Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

      Teresa Palomares appeals the U.S. Tax Court’s decision sustaining the

Commissioner of Internal Revenue’s (the “Commissioner”) determination that

Palomares was entitled to only partial relief from the Commissioner’s application

of overpayments to her joint and several tax liability from her 1996 return. We

have jurisdiction under 26 U.S.C. § 7482(a)(1). We reverse.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Palomares seeks innocent-spouse relief from her joint and several liability

for an unpaid 1996 joint return filed by her then-husband. In July 2008, a

volunteer attorney helped Palomares file a Form 8379—which requests injured-

spouse relief—rather than a Form 8857—which requests innocent-spouse relief.

This was a mistake. By the time Palomares corrected this mistake years later by

filing a Form 8857, the statute of limitations to request refunds for her 2006 and

2007 overpayments had expired. See 26 U.S.C. § 6511(a). Palomares nonetheless

argues that her Form 8379 was an “informal claim” for innocent-spouse relief and,

as a result, the time between her filing the Form 8379 and Form 8857 should be

tolled. We agree.

      The informal claim doctrine permits a taxpayer to avoid the limitations of

Section 6511(a) if the taxpayer filed a written refund request that was “sufficient to

apprise the Service that a refund is being claimed,” and “specifies the tax and the

year or years for which the refund is being sought sufficiently so that the Service

can investigate the claim.” Michael I. Saltzman, IRS Prac. & Proc. ¶ 11.08(2); see

United States v. Kales, 314 U.S. 186, 194 (1941). We conclude that Palomares’s

Form 8379 fairly apprised the Commissioner that Palomares was seeking innocent-

spouse relief from her 1996 liability for two reasons. First, the Commissioner had

been crediting Palomares’s tax overpayments—which were associated with returns

she filed separately—to liability on the 1996 return that she filed jointly. The only


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form of relief that made any sense under these circumstances was innocent-spouse

relief. Second, in responding to Palomares’s Form 8379, the Commissioner

informed Palomares that to request innocent-spouse relief, she should file a Form

8857, not a Form 8379.

      Based on the evidence presented to the Tax Court, the equities clearly weigh

in favor of granting Palomares relief under the informal claim doctrine. Palomares

spoke little to no English during the relevant period. She was the subject of

domestic abuse. She was not responsible for the deficient 1996 payment. And her

improper filing of the Form 8379 was the result of incorrect advice from a

volunteer attorney. Because Palomares’s Form 8379 sufficiently gave notice to the

Commissioner that Palomares was seeking a refund on the ground that she was an

innocent spouse, and the equities clearly weigh in her favor, the Tax Court should

have granted Palomares relief by letting her Form 8379 toll the limitations period

until the Form 8857 was filed.

      The Commissioner notes that Palomares’s Form 8379 indicated that she was

seeking a refund on her 2007 overpayment but was silent as to her 2006 return.

Nonetheless, whether Palomares put the IRS on notice as to her 2006 return is a

“highly fact intensive” inquiry that lacks “hard and fast rules,” and should focus on

“all the surrounding circumstances” and the “claim as a whole.” See Kaffenberger

v. United States, 314 F.3d 944, 955 (8th Cir. 2003) (internal quotation marks and


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citations omitted). Here, once the IRS received Palomares’s Form 8379 and

proceeded to review her 2007 request, it was on notice that Palomares’s liability

stemmed from the 1996 underpayment, and that the IRS had been crediting her

overpayments against this liability since 2006. There can be no serious question

that the IRS was on notice of her 2006 overpayment as well.

      On remand, the Tax Court shall order the Commissioner to grant Palomares

a refund for her 2006 and 2007 tax year overpayments.

      REVERSED




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