                    T.C. Summary Opinion 2009-96



                        UNITED STATES TAX COURT



                MAGDALENA STEGAWSKI, Petitioner,
            AND CHRISTOPHER STEGAWSKI, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2126-06S.               Filed June 16, 2009.



     Magdalena Stegawski, pro se.

     Christopher Stegawski, pro se.

     Anita A. Gill, for respondent.



     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

petition was filed.    Pursuant to section 7463(b), the decision to




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended.
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be entered is not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case.

     After this case was set for trial, respondent filed a motion

for summary judgment (motion), which the Court set for hearing on

the date set for trial.   Arguments on the motion were heard, but

the Court did not rule on the motion.    Rather, the Court

proceeded to try the case since the arguments and evidence

relevant to the motion and the issues for trial as framed by the

parties were essentially the same.

     At the time the petition was filed petitioner and intervenor

resided in Ohio.   Petitioner challenges respondent’s

determination denying her relief under section 6015 from unpaid

joint and several liabilities for the taxable years 1997 and

1999.

                            Discussion

     Petitioner submitted a Form 8857, Request for Innocent

Spouse Relief, for taxable years 1997 and 1999, which was

received by the Internal Revenue Service on October 18, 2005.    On

December 29, 2005, respondent sent to petitioner a Notice of

Determination Concerning Your Request for Relief from Joint and

Several Liability under Section 6015 (notice of determination)

denying petitioner any relief under section 6015(b), (c) or (f).

There is no question that relief is not available under section
                                 - 3 -

6015(b) or (c) since the 1997 and 1999 unpaid tax liabilities

were reported on the returns.

     Section 6015(f) provides:

          SEC. 6015(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.

     Respondent’s only reason for denying relief under section

6015(f), as stated in the notice of determination, was as

follows:

     We denied your claim because it was not filed within
     two years of the first collection activity. The first
     collection activity was a Collection Due Process notice
     issued to you on July 21, 2003, which you signed for on
     July 25, 2003. In order to be considered timely, your
     claim needed to be filed by July 21, 2005. Since your
     claim was not filed until October 18, 2005, we cannot
     consider your request for relief.

     The only argument respondent made in the motion for summary

judgment, in the pretrial memorandum, and during the trial was

that petitioner was not entitled to section 6015(f) relief

because she did not file her claim for spousal relief within 2

years of the first collection activity.   Unlike subsections (b)

and (c) of section 6015, subsection (f) does not contain a
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requirement that relief must be sought within 2 years of the

first collection activity.   However, respondent relies on section

1.6015-5(b)(1), Income Tax Regs., which provides that relief

under section 6015(f) is not available for claims that are not

filed within 2 years of the first collection activity.

     It is clear that petitioner’s claim was not filed within 2

years after the first collection activity.   However, this Court

has recently held that section 1.6015-5(b)(1), Income Tax Regs.,

is an invalid interpretation of section 6015.   Lantz v.

Commissioner, 132 T.C. ___, ___ (2009) (slip op. at 33).

Accordingly, we refused to apply the 2-year limitations period to

a taxpayer’s request for relief under section 6015(f).     Id.   In

accordance with this Court’s Opinion in Lantz, we refuse to apply

the 2-year limitations period.

     At trial petitioner credibly testified and produced

documents that establish that during the years in issue she was

raising her young children; that she earned very little income

(approximately $200 per year); that almost all of the income

reported on the returns was attributable to her husband, who was

a doctor; that she had refused to sign the returns that were

filed for 1997 and 1999; and that she delayed in requesting

spousal relief because she did not think the returns for 1997 and

1999 were hers.
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     The returns for 1997 and 1999 were filled out as joint

returns.   However, on the copy of the return for 1999 that was in

respondent’s records, the space for petitioner’s signature

(spouse’s signature) contains no signature.    Instead, the

following words were handwritten:    “Spouse delays signature she

has paid her share of tax due”.    Respondent had not retained a

copy of the 1997 return, but petitioner produced a copy of the

1997 return and credibly testified that she had not signed that

return.

     After the trial the Court suggested that respondent consider

whether the returns were actually joint returns and gave the

parties time to possibly resolve the question of petitioner’s

purported joint liability on that ground.2    The parties were

unable to do so.   In a posttrial report respondent requested that

the Court decide the case on the ground that petitioner’s request

for relief was not filed timely.

     Respondent’s only argument for denying petitioner relief

from joint liability pursuant to section 6015(f) is that she did

not file her claim within 2 years of the first collection action

as required by section 1.6015-5(b)(1), Income Tax Regs.    As



     2
       If the 1997 and 1999 returns did not give rise to joint
liabilities for petitioner, then it appears likely that she had
no tax liability. On the other hand, if petitioner had not filed
joint returns for 1997 and 1999, she would not be entitled to
relief in this proceeding under sec. 6015. See Raymond v.
Commissioner, 119 T.C. 191 (2002).
                                 - 6 -

previously mentioned, this Court rejected that argument in Lantz

v. Commissioner, supra.   Accordingly, we hold that petitioner is

entitled to relief from joint liability for 1997 and 1999

pursuant to section 6015(f).

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
