                  T.C. Summary Opinion 2004-145



                     UNITED STATES TAX COURT



                  DAWN E. GILES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11105-03S.             Filed October 21, 2004.


     Dawn E. Giles, pro se.

     Frank W. Louis, for respondent.



     PAJAK, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.    Unless otherwise

indicated, section references are to the Internal Revenue Code in

effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.    The decision to be

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

should not be cited as authority.
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     Respondent determined that petitioner was not eligible for

section 6015 relief from joint and several liability for 1995 and

1997.

     After a concession by respondent as to petitioner’s

entitlement to section 6015 relief for 1997, the issue for

decision is whether petitioner also is entitled to section 6015

relief from joint and several liability for 1995.

     Some of the facts in this case have been stipulated and are

so found.   Petitioner resided in East Greenwich, Rhode Island, at

the time she filed her petition.

     Petitioner separated from her husband, David Giles (Mr.

Giles), in 1995.   Their divorce was final in 1998.

     For 1995, petitioner and Mr. Giles jointly filed a Form

1040, U.S. Individual Income Tax Return.   Mr. Giles was an

insurance adjuster, and petitioner was a marketing director.     On

their Form 1040, petitioner and Mr. Giles reported $136,375

(rounded) in wage income.   The Forms W-2, Wage and Tax Statement,

attached to the Form 1040, reflected income of $119,233.18 for

Mr. Giles and $17,142.09 for petitioner.

     Petitioner’s actual income for 1995 was $47,652.08 as shown

on the two Forms W-2 issued by her employer.   This $30,509.99

omission of petitioner’s income, shown on one of the Forms W-2,

gave rise to the tax liability for 1995.

     On November 26, 1997, respondent issued to petitioner and
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Mr. Giles a notice of deficiency for taxable year 1995.

Respondent determined a deficiency for 1995 of $9,004 and an

accuracy-related penalty of $1,060.

     Thereafter, pursuant to their divorce decree, petitioner and

Mr. Giles agreed that they will share their Federal and State tax

liabilities “in the same ratio as their respective incomes

contributed to their gross income.”

     On July 1, 1999, petitioner submitted a Form 8857, Request

for Innocent Spouse Relief (And Separation of Liability and

Equitable Relief), to respondent.

     On April 30, 2001, respondent denied petitioner’s Request

for Innocent Spouse Relief.

     On April 11, 2003, respondent issued to petitioner a Notice

of Determination Concerning Your Request for Relief from Joint

and Several Liability under Section 6015 (notice of

determination).   In the notice of determination, respondent

determined that petitioner was ineligible for relief under

section 6015(b), (c), and (f).

     In her petition and amended petition, petitioner contends

that Mr. Giles filed their joint tax return for 1995, which

contained errors, and that Mr. Giles signed petitioner’s name on

the return.

     Section 6013(d)(3) provides that spouses filing a joint

Federal income tax return are jointly and severally liable for
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the tax due.   Section 6015(a) prescribes the procedures under

which an individual who has made a joint return may seek relief

from joint and several liability.   An individual may seek relief

under section 6015(b), (c), or (f).

     We first address whether petitioner is eligible for relief

under section 6015(b).   Section 6015(b)(1) generally provides

relief for an individual from joint liability for an

understatement of tax, if specific requirements are met.

Relevant is section 6015(b)(1)(C), which requires that “the other

individual filing the joint return establishes that in signing

the return he or she did not know, or had no reason to know, that

there was such understatement”.   Section 6015(b)(2) provides

apportionment of relief to an individual who would be entitled to

relief but for section 6015(b)(1)(C) if the individual “did not

know, and had no reason to know, the extent of such

understatement”.

     Petitioner stated that Mr. Giles prepared and filed their

joint tax return for 1995.   Petitioner also stated that she

received two separate Forms W-2 from her employer for 1995 and

that, without her knowledge, Mr. Giles failed to include the

income from one of the Forms W-2 on their 1995 tax return.

Petitioner claims that Mr. Giles accepted responsibility for the

omission of petitioner’s income and that Mr. Giles assured her

that, in petitioner’s words, “he would take care of it”.
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     In her July 10, 1997, written response to respondent’s

request for information about the 1995 tax return, petitioner

conceded that “I acknowledge signing the returns myself, and not

giving actual work and numbers any close scrutiny.”     In her

Request for Innocent Spouse Relief, petitioner stated that “I

signed the return without checking it for accuracy.”     Yet, in her

petition and amended petition, petitioner contended that Mr.

Giles had signed her name on the tax return.     At trial,

petitioner stated that the spouse’s signature on the 1995 return

was not hers.   Petitioner later stated that she could not

remember whether or not she had signed the 1995 tax return.

Petitioner further stated that she did not examine the 1995 tax

return before it was filed.

     Petitioner’s statements regarding whether or not she signed

the 1995 return were inconsistent.     It was not until she filed

her petition on July 7, 2003, that petitioner claimed that she

did not sign the 1995 tax return.    The only consistency in

petitioner’s statements as to the 1995 tax return was that she

did not review the return prior to its filing.     On this record,

we find that petitioner signed the 1995 joint tax return.

     On these facts, we conclude that petitioner knew or had

reason to know about the understatement of tax and the extent of

such understatement.   Accordingly, we sustain respondent’s

determination as to petitioner’s ineligibility for relief under
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section 6015(b).

     We next address whether petitioner is eligible for relief

under section 6015(c).    Section 6015(c) provides for allocation

of tax liability between the joint filers.

     Petitioner received two Forms W-2 for taxable year 1995, one

of which was omitted from the 1995 tax return.    Thus, the

deficiency for taxable year 1995 arose from the omission of

petitioner’s income.

     On these facts, we conclude that any allocation of tax

liability would be to petitioner.    Accordingly, we sustain

respondent’s determination that petitioner is ineligible for

relief under section 6015(c).

     Finally, we address whether petitioner is eligible for

relief under section 6015(f).    Section 6015(f) provides for

equitable relief, at the Secretary’s discretion, if relief under

section 6015(b) and (c) is not available.    Thus, we review

respondent’s denial of equitable relief under an abuse of

discretion standard.     Butler v. Commissioner, 114 T.C. 276, 292

(2000).    Petitioner bears the burden of proving that respondent

abused his discretion in denying equitable relief under section

6015(f).    Jonson v. Commissioner, 118 T.C. 106, 125 (2002), affd.

353 F.3d 1181 (10th Cir. 2003).

     Rev. Proc. 2000-15, 2000-1 C.B. 447, describes the

procedures for determining eligibility for equitable relief under
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section 6015(f).    Rev. Proc. 2000-15, supra, applies to requests

for equitable relief with respect to any liability for tax

arising on or before July 22, 1998, that was unpaid on that date.

Rev. Proc. 2000-15, sec. 3, 2000-1 C.B. at 448.

     Rev. Proc. 2000-15, sec. 4.01, 2000-1 C.B. at 448, lists the

threshold conditions that must be satisfied before the

Commissioner will consider a request for equitable relief under

section 6015(f).    We find that petitioner has satisfied the

threshold conditions.

     Rev. Proc. 2000-15, sec. 4.02, 2000-1 C.B. at 448, lists the

circumstances under which equitable relief will ordinarily be

granted.    Rev. Proc. 2000-15, sec. 4.02(2)(b) provides that

“Relief will only be available to the extent that the unpaid

liability is allocable to the nonrequesting spouse.”    The unpaid

liability for taxable year 1995 arose from the omission of

petitioner’s income.    Thus, petitioner does not qualify for

equitable relief under section 4.02.

     Rev. Proc. 2000-15, sec. 4.03, 2000-1 C.B. at 448-449, in

relevant part, provides a nonexhaustive list of positive and

negative factors for determining whether to grant equitable

relief to a requesting spouse who does not qualify for relief

under section 4.02.

     We find that the factors overwhelmingly weigh against

relief.    First, the unpaid liability arose from an omission of
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income attributable to petitioner.      Attribution to the

nonrequesting spouse weighs in favor of relief and attribution to

the requesting spouse weighs against relief.      Rev. Proc. 2000-15,

sec. 4.03(1)(f), (2)(a), 2000-1 C.B. at 449.      Second, petitioner

admitted that she did not review the joint return prior to

filing.   Thus, petitioner knew or had reason to know of the

omission of her income.    Rev. Proc. 2000-15, sec. 4.03(1)(d),

(2)(b), 2000-1 C.B. at 449.    Lastly, petitioner had a legal

obligation pursuant to her divorce decree to pay the liability.

Rev. Proc. 2000-15, sec. 4.03(2)(f).

     On these facts, we conclude that respondent did not abuse

his discretion in denying petitioner’s request for equitable

relief.   Accordingly, we sustain respondent’s determination that

petitioner is ineligible for relief under section 6015(f).

     We note the following two adjustments to the 1995 tax

liability.   On April 15, 1999, respondent applied an overpayment

of $2,557 from petitioner’s 1998 income tax return to the joint

tax liability from 1995.    On June 21, 2000, respondent allowed

$1,019 as an itemized deduction for State income tax paid for

1995, which resulted in an abatement of $316.
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     Contentions we have not addressed are irrelevant, moot, or

without merit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                        Decision will be entered

                                   under Rule 155.
