                       119 T.C. No. 11



                UNITED STATES TAX COURT



            RANIE M. RAYMOND, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 2354-01L.               Filed October 22, 2002.



      On her 1991 tax return, P’s filing status was
listed as “Married filing separate return”. On Jan. 9,
2001, R sent P a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330
regarding the 1991 tax year in which R determined that
P was not entitled to raise a spousal defense because
she did not file a joint return. On Feb. 12, 2001, P
sent to the Tax Court a Petition for Lien or Levy
Action Under Code Section 6320(c) or 6330(d). R filed
a Motion for Partial Summary Judgment on the issue of
whether P is eligible for relief under I.R.C. sec.
6015.

     Held: The petition was timely filed in order for
the Court to have jurisdiction to review R’s denial of
spousal relief. Sec. 6015(e)(1), I.R.C.

     Held, further, R’s Motion for Partial Summary
Judgment is granted because there is no genuine issue
as to whether P is entitled to relief under I.R.C. sec.
                                 - 2 -

     6015. P is not entitled to relief under I.R.C. secs.
     6015(b), (c), and (f) because she did not file a joint
     return.


     Ranie M. Raymond, pro se.

     A. Gary Begun, for respondent.


                                OPINION

     VASQUEZ, Judge:   This case is before the Court on

respondent’s motion for partial summary judgment under Rule 121.1

Background

     At the time of the filing of the petition, petitioner

resided in Livonia, Michigan.    On her 1991 Federal income tax

return, petitioner’s filing status was listed as “Married filing

separate return”.   At the time of the filing of the tax return,

no payment was made on the amount reported as due on the tax

return.   Respondent applied petitioner’s tax refunds from 1995

and 1998 in partial satisfaction of the amount due for 1991.

     On July 11, 2000, respondent sent petitioner a Final Notice:

Notice of Intent to Levy and Notice of Your Right to a Hearing.2

On January 9, 2001, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code in effect at all
relevant times.
     2
        The notice listed that petitioner owed $7,097.82 in
unpaid taxes for 1991 and $8,211.05 in penalties and interest for
that year.
                               - 3 -

and/or 6330 (notice of determination) regarding her 1991 tax

year.   In the notice of determination, respondent determined that

the collection against petitioner should be sustained because

petitioner did not file a joint return and, therefore, was not

entitled to raise a spousal defense.

     On February 12, 2001, petitioner sent a letter to the Court

regarding the notice of determination.   The Court received the

letter on February 16, 2001.   The Court filed petitioner’s letter

as a Petition for Lien or Levy Action Under Code Section 6320(c)

or 6330(d) (petition).   On March 14, 2001, the Court received

petitioner’s amended petition, which was filed as an Amended

Petition for Lien or Levy Action Under Code Section 6320(c) or

6330(d).

     On June 14, 2001, respondent filed a Motion to Dismiss for

Lack of Jurisdiction on the ground that the petition was not

filed within the time prescribed by section 6330(d).   Petitioner

objected to this motion.   On January 2, 2002, respondent filed a

Motion to Withdraw Respondent’s Motion to Dismiss for Lack of

Jurisdiction.   On January 2, 2002, respondent also filed a Motion

for Partial Summary Judgment on the issue of whether petitioner

is eligible for relief under section 6015.   On January 30, 2002,

petitioner filed a response to respondent’s motion for partial

summary judgment wherein petitioner objected to the granting of

the motion.
                                 - 4 -

Discussion

     Petitioner alleges that she signed a blank form, she did not

fill out the tax return, and she did not earn the income listed

on the tax return.    Petitioner filed the petition to request

relief from liability under section 6015 for tax due on the

income listed on her tax return that she allegedly did not earn.

     The issues presented are:    (1) Whether the petition was

timely filed for this Court to have jurisdiction; and (2) whether

a taxpayer must file a joint return to be eligible for relief

under section 6015.

I.   Jurisdiction

     It is well settled that this Court can proceed in a case

only if we have jurisdiction and that any party, or the Court sua

sponte, can question jurisdiction at any time, even after the

case has been tried and briefed.     Neely v. Commissioner, 115 T.C.

287, 290 (2000); Romann v. Commissioner, 111 T.C. 273, 280

(1998); Normac, Inc. & Normac Intl. v. Commissioner, 90 T.C. 142,

146-147 (1988); Brown v. Commissioner, 78 T.C. 215, 218 (1982).

     Our jurisdiction under section 6330(d)(1) depends on the

issuance of a valid notice of determination and a timely petition

for review.   Lunsford v. Commissioner, 117 T.C. 159, 165 (2001).

Section 6330(d)(1) provides that a person may appeal a notice of

determination by filing a petition within 30 days of the notice.

Sec. 6330(d)(1).
                                - 5 -

     We lack jurisdiction to review petitioner’s claim under

section 6330.    Petitioner filed a petition with this Court later

than 30 days after the notice of determination.3   We have held

that the 30-day period provided by section 6330(d)(1) is

jurisdictional and cannot be extended.    McCune v. Commissioner,

115 T.C. 114, 117 (2000).

     However, petitioner raised a spousal defense in the Appeals

Office proceeding before the Commissioner made a final

determination.   Sec. 6330(c)(2)(A)(i); sec. 301.6330-1(e)(2),

Proced. & Admin. Regs.   In the notice of determination,

respondent determined that petitioner was not entitled to relief

under section 6015 because she did not file a joint return.

     The timeliness of the petition, insofar as it seeks review

of the administrative denial of section 6015 relief, is,

therefore, dependent upon section 6015(e)(1).4   Under this


     3
          Petitioner sent her petition to the Tax Court 34 days
after respondent mailed her the notice of determination.
     4
         Sec. 6015(e)(1) provides, in pertinent part:

     SEC. 6015(e).   Petition for Review by Tax Court.--

     (1) In General.--In the case of an individual against whom a
deficiency has been asserted and who elects to have subsection
(b) or (c) apply--

          (A) In General.--In addition to any other remedy
     provided by law, the individual may petition the Tax
     Court (and the Tax Court shall have jurisdiction) to
     determine the appropriate relief available to the
     individual under this section if such petition is
     filed--

                                                     (continued...)
                              - 6 -

section, we have jurisdiction to review respondent’s

determination as to section 6015 relief because petitioner filed

her petition within 90 days of the notice of determination.5

     4
      (...continued)
               (i) at any time after the earlier of--

                    (I) the date the Secretary
               mails, by certified or registered
               mail to the taxpayer’s last known
               address, notice of the Secretary’s
               final determination of relief
               available to the individual, or

                    (II) the date which is 6
               months after the date such election
               is filed with the Secretary, and

               (ii) not later than the close of the
          90th day after the date described in clause
          (i)(I).

     5
        See sec. 301.6330-1(f)(2), Proced. & Admin. Regs.   This
regulation provides:

     Q-F2. With respect to the relief available to the
     taxpayer under section 6015, what is the time frame
     within which a taxpayer may seek Tax Court review of
     Appeals’ determination following a CDP hearing?

     A-F2. If the taxpayer seeks Tax Court review not only
     of Appeals’ denial of relief under section 6015, but
     also of relief with respect to other issues raised in
     the CDP hearing, the taxpayer should request Tax Court
     review within the 30-day period commencing the day
     after the date of the Notice of Determination. If the
     taxpayer only seeks Tax Court review of Appeals’ denial
     of relief under section 6015, the taxpayer should
     request review by the Tax Court, as provided by section
     6015(e), within 90 days of Appeals’ determination. If
     a request for Tax Court review is filed after the 30-
     day period for seeking judicial review under section
     6330, then only the taxpayer’s section 6015 claims may
                                                   (continued...)
                                - 7 -

II.   Motion for Partial Summary Judgment

      Respondent moved for partial summary judgment on the issue

of whether petitioner is eligible for relief under section 6015.

Respondent argues that petitioner is not entitled to relief under

section 6015 because she did not file a joint tax return.

      Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material fact

and a decision may be entered as a matter of law.   See Rule

121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).

      A.   Relief Under Section 6015(b) and (c)

      Relief is not available to petitioner under section 6015(b)

and (c) because petitioner did not file a joint return.   Both




      5
       (...continued)
      be reviewable by the Tax Court.
                                  - 8 -

sections explicitly require that a joint return be filed for

relief to be granted.6   Sec. 6015(b) and (c).


     6
         Sec. 6015(b) provides:

          SEC. 6015(b). Procedures for Relief from
     Liability Applicable to All Joint Filers.--

                (1) In General.--Under procedures
           prescribed by the Secretary, if--

                     (A) a joint return has been
                made for a taxable year;

                     (B) on such return there is an
                understatement of tax attributable
                to erroneous items of 1 individual
                filing the joint return;

                     (C) the other individual
                filing the joint return establishes
                that in signing the return he or
                she did not know, and had no reason
                to know, that there was such an
                understatement;

                     (D) taking into account all
                the facts and circumstances, it is
                inequitable to hold the other
                individual liable for the
                deficiency in tax for such taxable
                year attributable to such
                understatement; and

                     (E) the other individual
                elects (in such form as the
                Secretary may prescribe) the
                benefits of this subsection not
                later than the date which is 2
                years after the date the Secretary
                has begun collection activities
                with respect to the individual
                making the election,

           then the other person shall be relieved of
                                                    (continued...)
                                   - 9 -



     B.    Relief Under Section 6015(f)

     On its face, section 6015(f) does not require that a joint

return be filed in order for equitable relief to be granted under

that section.7    As directed by section 6015(f), the Commissioner


     6
      (...continued)
          the liability for tax * * * for such taxable
          year to the extent such liability is
          attributable to such understatement.
          [Emphasis added.]

Sec. 6015(c) provides:

          SEC. 6015(c). Procedures to Limit Liability for
     Taxpayers No Longer Married or Taxpayers Legally
     Separated or Not Living Together.--

                 (1) In General.--Except as provided in
            this subsection, if an individual who has
            made a joint return for any taxable year
            elects the application of this subsection,
            the individual’s liability for any deficiency
            which is assessed with respect to the return
            shall not exceed the portion of such
            deficiency properly allocable to the
            individual under subsection (d). [Emphasis
            added.]
     7
          Sec. 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),

                                                       (continued...)
                               - 10 -

uses procedures under Rev. Proc. 2000-15, 2000-1 C.B. 447 (the

revenue procedure), to determine whether an individual qualifies

for relief under that section.    Section 4.01 of the revenue

procedure lists seven threshold conditions, including the filing

of a joint return, that must be satisfied before the Commissioner

will consider a request for relief under section 6015(f).8

     The legislative history of section 6015 further demonstrates

that Congress intended a joint return requirement to apply to

section 6015(f).    The conference agreement accompanying the

enactment of section 6015(f) contemplates that a joint return be

filed as a prerequisite for the grant of equitable relief.      H.

Conf. Rept. 105-599, at 254 (1998), 1998-3 C.B. 747, 1008.      The

agreement stated:

          The conference agreement does not include the
     portion of the Senate amendment that could provide
     relief in situations where tax was shown on a joint
     return, but not paid with the return. The conferees
     intend that the Secretary will consider using the grant
     of authority to provide equitable relief in appropriate
     situations to avoid the inequitable treatment of
     spouses in such situations. * * *


     7
      (...continued)
     the Secretary may relieve such individual of such
     liability.
     8
         The revenue procedure provides, in pertinent part:

          4.01 Eligibility to be considered for equitable
     relief. All of the following threshold conditions must
     be satisfied before the Service will consider a request
     for equitable relief under sec. 6015(f). * * *

          (1) The requesting spouse filed a joint return
     for the taxable year for which relief is sought; * * *.
                              - 11 -

           The conferees do not intend to limit the use of
      the Secretary’s authority to provide equitable relief
      to situations where tax is shown on a return but not
      paid. The conferees intend that such authority be used
      where, taking into account all the facts and
      circumstances, it is inequitable to hold an individual
      liable for all or part of any unpaid tax or deficiency
      arising from a joint return. * * * [Emphasis added.]

Id.   The agreement clarifies that the conferees intended that

relief may be granted if it is inequitable to hold the taxpayer

liable for the unpaid tax or deficiency shown on a joint return.

      This requirement of a joint return is also consistent with

the caption to section 6015, Relief From Joint and Several

Liability on Joint Return.

      We, therefore, conclude that a joint return must be filed in

order for a taxpayer to be granted equitable relief under section

6015(f).

      As a result, we shall grant respondent’s motion for partial

summary judgment because no genuine issue exists as to whether

petitioner is entitled to relief under section 6015.   Petitioner

is not entitled to relief under section 6015 because she did not

file a joint return.   Because respondent’s motion for partial

summary judgment covers the remaining issues in the instant case,

we treat it as a motion for full summary judgment, which we shall

grant.

      To reflect the foregoing,

                                         An appropriate order and

                                    decision will be entered.
