                  T.C. Summary Opinion 2007-36



                     UNITED STATES TAX COURT



                   LOIS LIPTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12588-04S.            Filed March 7, 2007.


     Lois Lipton, pro se.

     Kathleen Raup, for respondent.



     GOLDBERG, Special Trial Judge:   This is a case arising under

section 6015(f), as amended,1 and 7463 of the Internal Revenue


     1
       The Tax Relief and Health Care Act of 2006, Pub. L. 109-
432, 120 Stat. 2922, amended sec. 6015(e)(1) to provide that this
Court may review the Commissioner’s denial of relief under sec.
6015(f) in cases where no deficiency has been asserted. The
amendment applies “with respect to liability for taxes arising or
remaining unpaid on or after the date of the enactment” of the
Act, December 20, 2006. See Tax Relief and Health Care Act of
2006, Pub. L. 109-432, div. C. sec. 408, 120 Stat. 3062. As of
the date of enactment, there remained an unpaid liability for tax
                                                   (continued...)
                                - 2 -

Code as in effect at the time the petition was filed.    Unless

otherwise indicated, subsequent section references are to the

Internal Revenue Code of 1986 as amended.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.

     This case arises from petitioner’s election to seek relief

from joint and several liability for Federal income tax for the

taxable year 2001 under section 6015(f).    Respondent determined

that petitioner was not entitled to such relief.    The sole issue

before this Court is whether petitioner is entitled to relief

under section 6015(f) for 2001 for an underpayment of tax shown

on the return.

                             Background

     Some of the facts are stipulated.    The stipulated facts and

the exhibits received into evidence are incorporated herein by

reference.   At the time that the petition was filed, petitioner

resided in Wilmington, Delaware.

     Petitioner and Ebrehem Khalil Aly (Mr. Khalil Aly), an

Egyptian national, met over the Internet sometime in 1996 and

began a romantic relationship soon thereafter that spanned the

next 5 years.    Mr. Khalil Aly was married with children and

living in Egypt at the time that he began an “online”


     1
      (...continued)
for the year 2001. Therefore, this Court has jurisdiction to
decide this case.
                                - 3 -

relationship with petitioner.   The relationship culminated in

early 2001 when Mr. Khalil Aly traveled to United States.

Shortly after Mr. Khalil Aly’s arrival, petitioner and Mr. Khalil

Aly were married by a clerk of the court in Florida sometime in

the late spring of 2001.

     Petitioner and Mr. Khalil Aly left Florida to reside

permanently in Delaware, where they both worked at Delcare

Management, LLC (Delcare), a physical therapy center.   Prior to

his arrival in the United States, Mr. Khalil Aly represented to

petitioner that he was a physician in Egypt.   At Delcare, Mr.

Khalil Aly assisted with therapy services by preparing ice and

heat packs and paraffin wax treatments, while petitioner worked

as the center’s office manager.   At or about the time Mr. Khalil

Aly started to receive paychecks from Delcare, he and petitioner

went to their local Internal Revenue Service (IRS) office in

Wilmington, Delaware.   The couple asked personnel at the IRS

office whether Mr. Khalil Aly would have to pay taxes on his

earnings in the United States, and whether he could claim

dependency exemptions for his children.   The IRS personnel

explained that, based on the information the parties provided at

that time, Mr. Khalil Aly would have to pay taxes on his earnings

in the United States, and he might be able to claim his children

as dependents.   The IRS personnel provided Mr. Khalil Aly with
                                - 4 -

the forms necessary to request Individual Taxpayer Identification

Numbers (ITINs) for his children.

     Shortly after the visit to the IRS office, Mr.

Khalil Aly submitted tax forms to Delcare’s payroll department.

These forms indicated that he wished to claim exemptions for six

children.

     Mr. Khalil Aly submitted ITIN requests for his six children

in the late spring of 2001.    Mr. Khalil Aly received at least two

replies to these requests.    The first response occurred

approximately 1 month after his initial submissions and contained

a set of supplemental questions pertaining to his

children’s residency.   Mr. Khalil Aly replied to this request.   A

second reply followed shortly thereafter, again requesting

additional information with respect to the children’s residency.

Correspondence of this nature continued for 12 months following

Mr. Khalil Aly’s initial request.

     Petitioner thereafter enlisted the assistance of her local

Congressman to procure the ITINs for Mr. Khalil Aly’s children.

The Congressman’s staff, in turn, enlisted the assistance of the

Commissioner’s Taxpayer Advocate Service, which informed Mr.

Khalil Aly in May 2002, that ITINs could not be issued for his

children because as of that date, he had not provided

documentation showing that his children satisfied the residency

requirement.   Thereafter, Mr. Khalil Aly neither provided the IRS
                                - 5 -

with information proving the residency of his children, nor did

he change the number of exemptions he had reported to Delcare for

withholding purposes.

     On June 26, 2002, petitioner and Mr. Khalil Aly filed a 2001

Form 1040, U.S. Individual Income Tax Return.     On their 2001

return, they elected the filing status of “married filing

jointly.”   Petitioner and Mr. Khalil Aly reported tax due and

owing of $10,808 on their 2001 return; however, they failed to

make any payment with respect to this tax due.     On December 10,

2002, petitioner and Mr. Khalil Aly submitted an offer-in-

compromise with respect to the unpaid tax for 2001.     Respondent

rejected this offer-in-compromise on January 23, 2003, and the

liability stemming from 2001 remains unpaid.

     On April 1, 2003, respondent received petitioner’s Form

8857, Request for Innocent Spouse Relief, with respect to taxable

years 2001 and 2002.    On the same date, respondent received

petitioner’s Form 12510, Questionnaire for Requesting Spouse.

Both Forms 8857 and 12510 were signed and dated by petitioner on

March 6, 2003, and, with respect to the 2002 taxable year, were

submitted before the 2002 Form 1040 was filed.2

     2
       Petitioner’s request for innocent spouse relief with
respect to taxable year 2002 was procedurally improper. Sec.
6015(b) permits a request for relief from joint and several
liability only when “a joint return has been made for a taxable
year”, and where that return shows “an understatement of tax”.
Sec. 6015(b)(1)(A) and (B). In this case, petitioner requested
relief for taxable year 2002 1 month before the 2002 return was
                                                   (continued...)
                               - 6 -

     On the Form 8857 submitted by petitioner, she stated that

she separated from Mr. Khalil Aly in January 2003, that she and

her spouse held a joint bank account, that she wrote checks and

balanced the check book, that she reviewed their 2001 return

before signing it, that she knew that there was a balance due

with respect to the 2001 taxable year, that she was in financial

trouble; and that there was no abuse in the marriage.   She also

stated that pursuant to a court order in Egypt, Mr. Khalil Aly

was required to send all of his earnings to his ex-wife and

children in Egypt and that the couple directed Mr. Khalil Aly’s

employer to withhold taxes based on six exemptions in reliance on

information provided to them by IRS employees.   Periodically, Mr.

Khalil Aly returned to Egypt for extended visits lasting several

months.   Petitioner was informed by agents of the Federal Bureau

of Investigations (FBI) in January 2003 that Mr. Khalil Aly was

still married to his wife in Egypt.    Petitioner thereafter began

annulment proceedings.

     On September 22, 2003, respondent sent petitioner a letter

stating that respondent had made a preliminary determination that

petitioner was not eligible for relief under section 6015(f) for

     2
      (...continued)
filed. Moreover, the 2002 return indicated that a refund was
owed. As petitioner’s request for relief for the 2002 taxable
year did not comply with the procedural requirements of sec.
6015, respondent addressed only the 2001 taxable year in the
Final Notice of Determination issued to petitioner on July 2,
2004. Accordingly, the taxable year 2002 is not at issue in this
case.
                               - 7 -

the 2001 taxable year.   On October 8, 2003, petitioner sent

respondent a Statement of Disagreement with respondent’s

preliminary determination as set forth in the letter dated

September 22, 2003.   On December 15, 2003, respondent’s Appeals

officer sent petitioner a letter advising her that he had

received her Statement of Disagreement, which would be considered

her appeal.   On January 24, 2004, the Appeals officer sent

petitioner a Notice of Determination Concerning Your Request for

Relief from Joint and Several Liability under Section 6015 and

Summary/Recommendation determining that petitioner was not

entitled to relief under section 6015 for the 2001 taxable year.

     On May 14, 2004, respondent’s Appeals officer sent

petitioner a letter advising her that the earlier determination

made by its Examination Division would stand.   The letter

requested a response from petitioner within 30 days.   Petitioner

responded by letter dated May 23, 2004, in which she reiterated

that she should not be held responsible for the liability

stemming from the 2001 taxable year, as that liability resulted

from representations that both the IRS personnel and Mr. Khalil

Aly made to her that ITINs would be issued for Mr. Khalil Aly’s

children for the taxable years at issue.

                            Discussion

     As a general rule, spouses making joint Federal income tax

returns are jointly and severally liable for all taxes shown on
                                 - 8 -

the return or found to be owing.    Sec. 6013(d)(3).   In certain

situations, however, a joint return filer can avoid such joint

and several liability by qualifying for relief therefrom under

section 6015.

Relief Available Under Section 6015(f)

     Section 6015 provides relief from joint liability by

providing the taxpayer with three avenues for obtaining relief:

(1) Section 6015(b) provides full or apportioned relief with

respect to understatements of tax attributable to certain

erroneous items on the return; (2) section 6015(c) provides

relief for a portion of an understatement of tax for taxpayers

who are separated or divorced; and (3) section 6015(f)

(potentially the broadest of the three avenues and the avenue

pertinent to the issue in this case) confers upon the Secretary

discretion to grant equitable relief for taxpayers who otherwise

do not qualify for relief under section 6015(b) or (c).     As there

is no understatement of tax at issue, neither section 6015(b) nor

(c) applies.    Therefore, we must consider the equitable relief

provisions of section 6015(f).

     Section 6015(f), as amended, provides, in part, that a

taxpayer may be relieved from joint and several liability if it

is determined that, taking into account all the facts and

circumstances, it is inequitable to hold the taxpayer liable for

the unpaid tax, and relief is not available under section 6015(b)
                                - 9 -

or (c).    To prevail, petitioner must prove both that she is

entitled to relief under section 6015 and that respondent’s

denial of equitable relief from joint liability under section

6015(f) was an abuse of discretion.     Jonson v. Commissioner, 118

T.C. 106, 125 (2002), affd. 353 F.3d 1181 (10th Cir. 2003);

Cheshire v. Commissioner, 115 T.C. 183, 198 (2000), affd. 282

F.3d 326 (5th Cir. 2002); Butler v. Commissioner, 114 T.C. 276,

291-292 (2000).    For the following reasons, we conclude that

petitioner is not entitled to relief under section 6015 because

she was not eligible to file a joint return for taxable year

2001.

     In order to be eligible for relief under section 6015,

petitioner must have made a joint return for the taxable year at

issue.    See sec. 6015(a)(1), (b)(1)(A).   Section 6013 defines a

joint return as that made by a “husband and wife”.    Sec. 6013(a).

In the administration of the Federal income tax laws, the marital

status of individuals is determined under State law where the

taxpayer resides.    Von Tersch v. Commissioner, 47 T.C. 415, 419

(1967); Rev. Rul. 58-66, 1958-1 C.B. 60.    Accordingly, we now

consider petitioner and Mr. Khalil Aly’s marital status under

Delaware law.

     During at least the 5 years prior to his arrival in the

United States in 2001, Mr. Khalil Aly was married with children

in Egypt.    During this period, he did not hide his marital status
                              - 10 -

from petitioner.   When Mr. Khalil Aly arrived in Florida to meet

petitioner in early 2001, he announced to her that although he

was no longer married to his wife in Egypt, “however” an Egyptian

court had issued an order that he remit all of the wages that he

might earn in the United States to his former wife and their six

children.   Petitioner testified that shortly after Mr. Khalil Aly

arrived in the United States, she and he were married by a clerk

of a court somewhere in Florida.    Petitioner did not testify

about any of the details surrounding the marriage ceremony or

provide any documentation proving that a marriage ceremony took

place.

     After their initial meeting and purported marriage ceremony

in Florida, petitioner and Mr. Khalil Aly moved to Delaware.

They lived together there from approximately April 2001 to

January 2003.   During the 21 months that they resided in

Delaware, petitioner testified that Mr. Khalil Aly made

approximately three extended trips back to Egypt.    He was gone

for approximately 2 months during each trip.    Near the time of

each of these trips, Mr. Khalil Aly would offer petitioner an

elaborate reason for his travel.    These reasons included a life-

saving operation for one of his daughters and training that he

was required to undergo to become the next “Egyptian Medical

Ambassador to the United States.”    According to petitioner, on

each trip made to Egypt Mr. Khalil Aly would take with him large
                              - 11 -

sums of cash including all of the wages he earned while working

at Delcare, plus additional money that petitioner gave him.

     Petitioner testified that it was during the last of Mr.

Khalil Aly’s extended trips to Egypt that she received a visit

from agents of the FBI.   The FBI agents informed petitioner that

Mr. Khalil Aly was perpetrating a ruse:   that he was, and had

always been, married to his wife in Egypt, that he came to the

United States for the primary purpose of marrying a citizen here,

and that he was not in line to become the next “Egyptian Medical

Ambassador to the United States.”   The FBI strongly advised

petitioner to seek an annulment from the Family Court in Delaware

so that Mr. Khalil Aly (who the FBI perceived as a threat to

national security) could not “use” his “marriage” to a U.S.

citizen to gain reentry into the United States.

     On the basis of the foregoing facts, and the suspect

circumstances under which Mr. Khalil Aly came to the United

States (including the brevity of his and petitioner’s engagement

period (apparently days, at most)), we conclude that Mr. Khalil

Aly was, in fact, married at the time that a marriage ceremony

was conducted in Florida, assuming that such a ceremony actually

occurred.   Under Florida law, a person who has a living spouse

and marries another person is guilty of a felony of the third

degree.   Fla. Stat. Ann. sec. 826.01 (West 2006).   Therefore, the

marriage entered into by petitioner and Mr. Khalil Aly in Florida
                                - 12 -

was void ab initio.     Groover v. Groover, 383 So. 2d 280, 283

(Fla. Dist. Ct. App. 1980).    Accordingly, since there was no

valid marriage, under ordinary circumstances, an annulment would

be unnecessary.   Id.

     We believe that petitioner sought an annulment in the Family

Court in Delaware based equally on the FBI’s revelation to her of

Mr. Khalil Aly’s marital status and motive for remaining

“married” to a U.S. citizen, and her desire to prevent him from

returning to their home.    We find that petitioner was very

emotionally distressed and confused by the circumstances that

transpired during and after her visit from the FBI.    We believe

that petitioner honestly thought that she had to obtain an

annulment although we are uncertain as to whether there was a

requirement for her to do so under these circumstances.    While we

acknowledge that it was improper for her to seek an annulment

after she was told that a valid marriage in Florida never

occurred, we do not consider petitioner’s obtaining the annulment

as having any legal effect with respect to the issue of

petitioner’s correct filing status for taxable year 2001.

     Moreover, although we acknowledge that a bigamous marriage

is voidable in Delaware, in this case the marriage was not

entered into in Delaware but Florida, where such marriages

subject the married party to a felony charge and are therefore

void.   Del. Code Ann. tit. 13, sec. 101 (1999); Fla. Stat. Ann.
                              - 13 -

sec. 826.01 (West 2006).   While we believe that the State of

Florida had no reason to suspect that the Florida marriage was

void ab initio, we do not find that the subsequent annulment gave

validity to either the marriage entered into in Florida or the

cohabitation of petitioner and Mr. Khalil Aly in Delaware.    A

marriage void ab initio in the State where contracted is also

void ab initio in another jurisdiction.   Cf. Loughran v.

Loughran, 292 U.S. 216, 223 (1934) (a general rule of conflict of

laws that a marriage, which is valid under the law of the place

where it is contracted, is recognized as valid everywhere).     As a

final point on the inconsequential effect of the annulment, we

conclude that the Delaware annulment did not validate any common

law arrangement that would permit petitioner to file as married,

as neither Florida nor Delaware recognizes common law marriage.

Del. Code Ann. tit. 13, sec. 126 (1999); Fla. Stat. Ann. sec.

741.241 (West 2005).

     In Delaware, the presumption of marriage arising from

marital cohabitation is not conclusive but rather subject to

rebuttal, which may be made by proof of facts showing that no

marriage ever existed between the parties, or proof that at its

commencement either party had a prior spouse living and

undivorced.   Owens v. Bentley, 14 A.2d 391 (Del. 1940).    Here, we

are convinced that the facts presented in this case are
                               - 14 -

conclusive that there was never a valid marriage between

petitioner and Mr. Khalil Aly.

     Accordingly, we conclude that petitioner is not entitled to

relief under section 6015(f) because Mr. Khalil Aly was still

married at the time that their ceremony in Florida purportedly

occurred, making any union between him and petitioner

meretricious from its inception.    Moreover, a joint return could

not be filed by petitioner and Mr. Khalil Aly under these facts

as Mr. Khalil Aly’s previous marriage had not been legally

dissolved.    Chap v. Commissioner, T.C. Memo. 1964-26.   The fact

that petitioner and Mr. Khalil Aly resided together in Delaware

for 21 months is irrelevant, as there is no State that recognizes

a bigamous common law marriage.    Ochs v. Commissioner, T.C. Memo.

1986-595.    Since petitioner could not be married to Mr. Khalil

Aly, petitioner is not entitled to joint filing status for the

2001 taxable year.

Petitioner’s Liability for Taxable Year 2001

     Petitioner’s correct filing status for the taxable year 2001

should be “single.”    Petitioner’s income tax liability for 2001

should be calculated using the filing status “single.”3

     3
       Exhibit 13 in this case is a copy of petitioner’s amended
tax return with the filing status single for year 2001 that she
submitted to respondent sometime before the trial. We are unsure
as to whether respondent has accepted this return. As a result
of this opinion, respondent should accept the amended return as
                                                   (continued...)
                             - 15 -

     With respect to taxable year 2001, petitioner has only

provided, as an attachment to the joint tax return, a copy of her

Form W-2, Wage and Tax Statement, from Delcare.   The Court is not

in possession of sufficient information from which petitioner’s

liability for 2001 may be decided.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                          Decision will be entered

                                     for respondent.




     3
      (...continued)
filed. In the alternative, petitioner may be entitled to file a
return for the taxable year at issue with the filing status of
“single.”
