                            T.C. Memo. 2003-282



                          UNITED STATES TAX COURT


               ZENOBIA ELISIA CLARY ZIEGLER, Petitioner v.
               COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 7435-02.               Filed October 2, 2003.


        Dean E. Wanderer, for petitioner.

     Nancy C. Carver, for respondent.



                  MEMORANDUM FINDINGS OF FACT AND OPINION


        MARVEL, Judge:    This case arises from a request for relief

under section 60151 with respect to petitioner’s 1998 taxable

year.       The issue for decision is whether respondent abused his




        1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times.
Monetary amounts are rounded to the nearest dollar.
                               - 2 -

discretion in denying petitioner relief under section 6015(f) for

the taxable year 1998.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts is incorporated herein by this

reference.   Petitioner resided in Lake Ridge, Virginia, when she

filed the petition in this case.

     Petitioner was married to John L. Ziegler, Jr. (Mr.

Ziegler), from 1990 until March 7, 2000.     Petitioner separated

from Mr. Ziegler in February 1999.     Petitioner earned her

bachelor’s degree from Virginia State University.     During 1998,

petitioner was employed by the Commonwealth of Virginia and

Suffolk County Schools, and Mr. Ziegler was employed as a U.S.

Marshal.

     Petitioner and Mr. Ziegler filed electronic joint Federal

income tax returns for 1995, 1996, and 1997.     In anticipation of

filing a joint return with Mr. Ziegler for 1998, petitioner gave

Mr. Ziegler her 1998 W-2, Wage and Tax Statements, which showed

taxable income of $1,159 from Suffolk Public Schools and $1,680

from the Commonwealth of Virginia.     Mr. Ziegler subsequently

returned the W-2 statements to petitioner and informed her that

he would file a separate income tax return because petitioner did

not make enough money to require the filing of a return.

However, without petitioner’s knowledge, Mr. Ziegler arranged for
                               - 3 -

H&R Block to prepare and electronically file a joint return for

1998 that claimed an overpayment to be refunded of $7,457.

Although Form 8453, U.S. Individual Income Tax Declaration for

Electronic Filing, which was submitted to respondent with respect

to the 1998 joint return, contained what purported to be the

signatures of Mr. Ziegler and petitioner, petitioner did not sign

the Form 8453.   The 1998 joint return reported the earned income

of Mr. Ziegler in the amount of $92,393 but did not include

petitioner’s earned income.

      On or about March 8, 1999, respondent issued to petitioner

and Mr. Ziegler a refund check in the amount of $7,457 on the

basis of the refund claim made on the 1998 joint return.

Petitioner discovered the refund check when she stopped at Mr.

Ziegler’s residence to retrieve mail, and she realized then that

he must have filed a joint return for 1998.   At Mr. Ziegler’s

request, petitioner deposited the refund check into Mr. Ziegler’s

individual bank account.   Before depositing the check, petitioner

obtained a copy of the 1998 return from H&R Block and reviewed

it.

      Petitioner did not live with Mr. Ziegler after they

separated in 1999, and he did not pay any of her bills.

Petitioner did not receive any part of the refund check issued

with respect to the 1998 joint return.
                               - 4 -

     Respondent sent petitioner and Mr. Ziegler a notice of

deficiency, dated May 22, 2000, in which respondent determined

that petitioner and Mr. Ziegler were liable for an income tax

deficiency of $798 for 1998.   The deficiency was based solely on

petitioner’s unreported W-2 income of $2,839.   Respondent

assessed the deficiency in June 2000.

     Petitioner contacted respondent in July 2000 after receiving

collection notices regarding the assessment of the liability for

1998.   In October 2000, pursuant to advice from one of

respondent’s employees, petitioner filed a “married filing

separate” return for 1998 reporting her taxable income of $2,839.

Respondent initially processed the 1998 married filing separate

return but later reversed the transaction because of respondent’s

position that petitioner already had filed a valid joint 1998

return.   On March 12, 2001, respondent applied an overpayment of

$923 from petitioner’s 2000 taxable year to the unpaid balance of

the 1998 assessment, paying it in full.

     On March 19, 2001, petitioner contacted the local Taxpayer

Advocate’s Office in Richmond, Virginia, to request assistance

with the 1998 assessment.   Petitioner was dissatisfied with the

response from the local office and contacted the National

Taxpayer Advocate’s Office, which explained to petitioner the

reasons she was not entitled to relief.
                               - 5 -

     On July 26, 2001, petitioner filed a Form 8857, Request for

Innocent Spouse Relief, for 1998 requesting a refund of $923.

On February 28, 2002, respondent sent petitioner a preliminary

denial of her request for relief pursuant to section 6015(f),

because the liability had been paid in full before petitioner

filed her claim.   On March 12, 2002, petitioner filed a Statement

of Disagreement regarding the denial of her request for relief.

On March 28, 2002, respondent issued a final notice denying

petitioner relief from the 1998 joint liability.   Respondent’s

denial rested solely upon Rev. Proc. 2000-15, sec. 4.01(4), 2000-

1 C.B. 447, 448, which requires, with certain exceptions, that

the disputed tax liability must remain unpaid in order for the

Internal Revenue Service (IRS) to consider a request for

equitable relief under section 6015(f).   In denying petitioner

relief under section 6015(f), respondent did not consider all of

the factors set forth in Rev. Proc. 2000-15, supra.   Petitioner

timely filed a petition seeking redetermination of respondent’s

denial of relief from joint liability for 1998.2   A trial was

held on December 3, 2002.

     On April 21, 2003, we filed our opinion in Washington v.

Commissioner, 120 T.C. 137 (2003), in which we held that section

6015 applies to the full amount of any preexisting tax liability



     2
      Petitioner’s ex-husband, Mr. Ziegler, died on May 10, 2002,
before respondent notified him of these proceedings.
                               - 6 -

for a particular taxable year, if any of that liability remains

unpaid as of July 22, 1998, and not just to portions of the tax

liability that remain unpaid after July 22, 1998, the date of

enactment of the Internal Revenue Service Restructuring and

Reform Act of 1998 (RRA 1998), Pub. L. 105-206, sec. 3201(g)(1),

112 Stat. 740.   In so doing, we emphasized that “Section 6015

applies ‘to any liability for tax arising after the date of the

enactment of this Act [July 22, 1998] and any liability for tax

arising on or before such date but remaining unpaid as of such

date.’”    Washington v. Commissioner, supra at 154 (quoting RRA

1998 sec. 3201(g)).   We held that section 6015(g) permits a

refund where relief from liability is granted under section

6015(f) and rejected the Commissioner’s argument that the

reference to “unpaid tax” contained in section 6015(f) operates

to restrict relief under section 6015(f) to the portion of the

tax liability in question that remained unpaid as of July 22,

1998.   Id. at 159.

     On May 14, 2003, we issued an order remanding this case to

respondent to reconsider petitioner’s application for relief in

light of our opinion in Washington and to report to us regarding

the result of that reconsideration.    Pursuant to our order,

respondent issued a determination dated July 3, 2003, concluding

that petitioner did not qualify for relief under section 6015(f)

and Rev. Proc. 2000-15, supra.   On August 7, 2003, the parties
                                 - 7 -

submitted a joint status report requesting that respondent’s

determination of July 3, 2003, be made part of the record in this

case.    In that report, petitioner stated that she does not agree

with the conclusions reached in respondent’s July 3, 2003,

determination, and the parties agreed that no further trial

proceedings are needed to supplement the record in this case.

                                OPINION

     Generally, taxpayers filing a joint Federal income tax

return are each responsible for the accuracy of their return and

are jointly and severally liable for the full tax liability.

Sec. 6013(d)(3); Butler v. Commissioner, 114 T.C. 276, 282

(2000).    However, in certain circumstances, a taxpayer may obtain

relief from joint and several liability under section 6015.3

     The relief afforded by section 6015(f) is available only to

a taxpayer who filed a joint Federal income tax return for the

year at issue.    Raymond v. Commissioner, 119 T.C. 191 (2002);

see also Rev. Proc. 2000-15, 2000-1 C.B. 447.   In this case,

petitioner argues that she is entitled to relief under section

6015(f) from joint and several liability arising from the filing

of the 1998 joint return, but she also argues that she did not

file a joint return for 1998.    Although petitioner was aware that


     3
      Sec. 6015 applies to tax liabilities arising after July 22,
1998, and to tax liabilities arising on or before July 22, 1998,
but remaining unpaid as of such date. Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.
3201(g), 112 Stat. 740.
                                - 8 -

she could request relief under section 6015(f) only if she had

filed a joint return for 1998, petitioner, through her counsel,

did not clearly state during trial that she conceded the joint

return issue.   However, we shall assume, for purposes of our

analysis, that petitioner has effectively conceded that she filed

or ratified the filing of a joint return for 1998 because she

continues to assert she is entitled to relief under section

6015(f).4

     Our jurisdiction to review petitioner’s claim for relief is

conferred by section 6015(e).   This provision allows a spouse who

has requested relief from joint and several liability to contest

the Commissioner's denial of relief or to contest the



     4
      The failure of one spouse to sign an income tax return
before its filing does not necessarily mean that the return is
not a joint return. Heim v. Commissioner, 27 T.C. 270 (1956),
affd. 251 F.2d 44 (8th Cir. 1958). The determinative factor in
deciding whether a filed return qualifies as a joint return is
whether a husband and wife intended to file a joint return.
Stone v. Commissioner, 22 T.C. 893 (1954). We have held that
where a husband filed a joint return with no objection from his
wife, who failed to file her own return, a presumption arises
that the joint return was filed with the tacit approval of the
wife. Heim v. Commissioner, supra at 273; see also Carroro v.
Commissioner, 29 B.T.A. 646, 650 (1933).
     In this case, petitioner knew that Mr. Ziegler had filed a
joint return for 1998 when she saw the refund check issued in
both of their names. She subsequently obtained a copy of the
filed return and, knowing that her husband had filed a joint
return for 1998, took the joint refund check and deposited it
into her husband’s account. But she made no effort to verify
that the joint return included her earned income or to file a
separate return reporting her earned income until July 2000 when
she started to receive collection notices from respondent for the
1998 deficiency assessment.
                                - 9 -

Commissioner's failure to make a timely determination, by filing

a timely petition in this Court.   Sec. 6015(e).   These cases are

referred to as “stand alone” cases because they are independent

of any deficiency proceeding.   Sec. 6015(e)(1); Mora v.

Commissioner, 117 T.C. 279 (2001); Fernandez v. Commissioner, 114

T.C. 324, 329 (2000).

     In this stand alone case, petitioner relies upon section

6015(f) which authorizes respondent to grant equitable relief to

those taxpayers who do not otherwise meet the requirements of

section 6015(b) or (c) but who satisfy the requirements of

section 6015(f)(1) and (2).   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.

     The parties agree that petitioner is not eligible for relief

under either section 6015(b) or (c).5   Sec. 6015(f)(2).   The


     5
      In pertinent part, sec. 6015(b) provides relief from joint
and several liability for an electing spouse who has filed a
joint return that contains an understatement of tax attributable
to the spouse not seeking relief. Sec. 6015(b)(1). Sec. 6015(c)
provides relief from a joint deficiency for taxpayers who are
                                                   (continued...)
                              - 10 -

parties disagree, however, regarding whether it is inequitable to

hold petitioner liable for the 1998 deficiency assessment, taking

into account all of the relevant facts and circumstances.    Sec.

6015(f)(1).   Consequently, we must decide whether respondent

abused his discretion in determining that petitioner was not

entitled to relief under section 6015(f).6   Cheshire v.

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

Cir. 2002); Butler v. Commissioner, supra at 291-292.

     Pursuant to section 6015(f), the Commissioner has prescribed

procedures in Rev. Proc. 2000-15, supra, that are to be used in

determining whether an individual qualifies for relief under that

section.7   Rev. Proc. 2000-15, sec. 4.01, lists seven threshold

conditions that must be satisfied before the IRS will consider a

request for relief under section 6015(f).    Subsequent to our May

14, 2003, order, respondent eliminated Rev. Proc. 2000-15, sec.

4.01(4), as a threshold condition for relief in this case.

Respondent concedes that the remaining threshold conditions are

satisfied in this case.


     5
      (...continued)
divorced, legally separated, or otherwise living apart. Refunds
are not available under section 6015(c). Sec. 6015(g)(3).
     6
      We consider respondent’s July 3, 2003, determination as the
final determination in this case.
     7
      On Aug. 11, 2003, the Commissioner issued Rev. Proc. 2003-
61, 2003-32 I.R.B. 296, which supersedes Rev. Proc. 2000-15,
2000-1 C.B. 447, effective for requests for relief filed on or
after Nov. 1, 2003.
                              - 11 -

     Where, as here, the requesting spouse satisfies the

threshold conditions set forth in Rev. Proc. 2000-15, sec. 4.01,

Rev. Proc. 2000-15, sec. 4.03, 2000-1 C.B. at 448, provides that

equitable relief may be granted under section 6015(f) if, taking

into account all facts and circumstances, it is inequitable to

hold the requesting spouse liable.     Rev. Proc. 2000-15, sec.

4.03(1), 2000-1 C.B. at 448-449, lists the following six factors

that the Commissioner will consider as weighing in favor of

granting relief for the liability (positive factors):     (1) The

requesting spouse is separated or divorced from the nonrequesting

spouse; (2) the requesting spouse would suffer economic hardship

if relief is denied; (3) the requesting spouse was abused by the

nonrequesting spouse; (4) the requesting spouse did not know or

have reason to know of the items giving rise to the deficiency;

(5) the nonrequesting spouse has a legal obligation pursuant to a

divorce decree or agreement to pay the liability; and (6) the

liability is solely attributable to the nonrequesting spouse.

Rev. Proc. 2000-15, sec. 4.03(2), 2000-1 C.B. at 449, lists the

following six factors that the Commissioner will consider as

weighing against granting relief for the liability (negative

factors):   (1) The unpaid liability is attributable to the

requesting spouse; (2) the requesting spouse knew or had reason

to know of the item giving rise to the deficiency; (3) the

requesting spouse significantly benefited (beyond the normal
                                - 12 -

support) from the unpaid liability; (4) the requesting spouse

will not experience economic hardship if relief is denied; (5)

the requesting spouse has not made a good-faith effort to comply

with Federal income tax laws in the tax years following the tax

year to which the request for relief relates; and (6) the

requesting spouse has a legal obligation pursuant to a divorce

decree or agreement to pay the liability.   No single factor is

determinative in any particular case; all factors are to be

considered and weighed appropriately; and the list of factors is

not intended to be exhaustive.    See Washington v. Commissioner,

120 T.C. at 148; Jonson v. Commissioner, 118 T.C. 106, 125

(2002).

     Respondent argues that petitioner is not eligible for relief

under section 6015(f) because the negative factors in Rev. Proc.

2000-15, supra, outweigh the positive factors in that revenue

procedure.   Respondent primarily relies on the following:

Petitioner will not suffer economic hardship if she is denied

relief; petitioner’s income is the sole basis for the deficiency;

and petitioner knew that her earned income was not included on

the 1998 joint return.   On the basis of our review of the record

in this case, we agree with respondent.

     The record is devoid of any evidence demonstrating that

petitioner will experience any economic hardship if relief from

the liability is not granted.    Petitioner did not offer any proof
                                - 13 -

of her income, expenses, assets, or liabilities, nor did she

offer any proof that her ability to sustain herself economically

had been jeopardized by the application of her 2000 income tax

refund to the 1998 liability.

     Although petitioner testified that her husband was an

alcoholic and was verbally and emotionally abusive, respondent

points out that, at the time petitioner discovered that her

income had been omitted on the joint return, she was already

separated from her husband.   Petitioner failed to file an amended

joint return, and she did not attempt to file a married filing

separate return for 1998 until she received collection notices.

     The record establishes that petitioner knew or had reason to

know of the item giving rise to the deficiency because that item

consisted solely of her own income.      She had actual knowledge or

reason to know that her income had been omitted when she received

a copy of the 1998 return from H&R Block.

      Petitioner’s principal argument focuses on the inequities

of her situation.   Petitioner testified that she was misled by

Mr. Ziegler regarding the need to report her earned income on the

1998 joint return that he prepared and filed on their behalf, and

she argues that she did not significantly benefit from the joint

refund issued for 1998.   Although it appears from the sparse

record that petitioner was misled by Mr. Ziegler and that she did

not receive or directly benefit from the refund claimed on the
                             - 14 -

1998 joint return, petitioner’s equitable argument is not enough

to overcome evidence that the omitted income was her earned

income and that she knew or had reason to know the income had

been omitted from the 1998 joint return.    Petitioner’s equitable

argument is also insufficient to overcome a record devoid of any

evidence regarding economic hardship.

     On the record before us, we find that petitioner has failed

to carry her burden of establishing that respondent abused his

discretion in denying her relief under section 6015(f).

     To reflect the foregoing,



                                           Decision will be entered

                                   for respondent.
