                        T.C. Memo. 2004-102



                      UNITED STATES TAX COURT



      ANGELA BARRIGA, f.k.a. ANGELA ROBLEDO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8571-00.              Filed April 15, 2004.



     Angela Barriga, pro se.

     Monica J. Miller, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:   Respondent determined deficiencies in

petitioner’s Federal income tax and penalties for l992, 1993, and

1994 as follows:
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                                        Addition to Tax/Penalty
Year           Deficiency          Sec. 6651(a)         Sec. 6662(a)

1992             $7,589                --                $1,096
1993             90,049              $21,647             17,554
1994            202,878                --                40,507

Respondent also determined that petitioner is not entitled to

relief from joint and several liability for 1989, 1990, and 1991.

The petition seeks relief from both determinations.    The issue

for decision is whether petitioner is eligible for relief under

section 6015 for any of the years 1989 through 1994.

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                            FINDINGS OF FACT

       Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner resided in Texas at the time she filed the petition in

this case.

       Petitioner was born and raised in Medellin, Colombia.   In

1976, petitioner graduated from Asbury College in Wilmore,

Kentucky, and, in 1981, she graduated with a degree of Master of

Science in Education from Baylor University in Texas.    Thereafter

she was employed as an elementary school teacher, and she

received wages as a teacher during each of the years in issue.

In 1992, petitioner graduated from the Reynaldo G. Garza School
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of Law in San Benito, Texas.   Petitioner did not pass the Texas

State bar examination.

     Petitioner married Amado Robledo (Robledo) in 1981.    She

filed for divorce in 1994.   Robledo filed a bankruptcy petition

in 1995.   The divorce was finalized in 1997.   Petitioner was

awarded money and various items of property in the final divorce

decree, including $150,000, three automobiles, and several

parcels of real property.    The divorce decree provided in part as

follows:

     AMADO ROBLEDO shall be solely responsible for all
     federal income tax liabilities of the parties from the
     date of marriage through December 31, 1996 and shall
     timely pay any deficiencies, assessments, penalties, or
     interest due thereon and shall hold Petitioner harmless
     therefrom.

          IT IS FURTHER ORDERED AND DECREED that the
     certificate of deposit in the amount of $200,000.00
     plus interest currently held in trust with the Law
     Office of Paul L. Wiley * * * in the names of AMADO
     ROBLEDO and ANGELA B. ROBLEDO will be used to offset
     any tax liabilities, including interest, penalties and
     other assessments by the Internal Revenue Service from
     the date of marriage through December 31, 1996.

     Petitioner and Robledo filed joint Federal income tax

returns for 1989 and 1990.   The joint returns reported

underpayments of $6,347 and $271,766 for 1989 and 1990,

respectively.   As of the time of trial on September 22, 2003, the

tax, penalty, and interest for 1989 and the tax and interest for

1990 were fully paid after application of payments by Robledo.
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     In 1995, petitioner and Robledo each filed returns for 1991

using the filing status of “married filing separate return”.

Petitioner’s return for 1991 was filed in March 1995 and reported

tax due of $38,406 and an underpayment of $32,625.    On

November 9, 1995, respondent sent a notice of deficiency for 1991

to petitioner.    In or after October 1995, petitioner and Robledo

attempted to file an amended return for 1991 using the status of

“married filing joint return”.

     In September 1995, Robledo filed separate returns for 1992

and 1993.   On October 12, 1995, joint Forms 1040X, Amended U.S.

Individual Income Tax Return, for 1992 and 1993 were filed.    The

amended returns claimed overpayments for 1992 and 1993 in the

amounts of $17,106 and $20,386, respectively.   Also on

October 12, 1995, petitioner and Robledo filed a joint Form 1040

for 1994 claiming an overpayment of $4,675.   Each of the joint

returns reported wages paid to petitioner, Schedule C, Profit or

Loss From Business, income of Robledo, and rental income from

various properties owned by petitioner and Robledo.

     In or about 1999, petitioner, represented by a certified

public accountant, filed a request for section 6015 relief.

During the Appeals process, petitioner was allowed partial relief

from joint and several liability under section 6015(c) for 1992,

1993, and 1994.   Respondent and petitioner’s representative

together determined the appropriate allocation of the deficiency
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for each year.   By eliminating the portion of the deficiency

attributable solely to Robledo, petitioner’s liability for the

deficiencies determined in the notice of deficiency after

application of section 6015(c) was reduced to $1,404, $30,120,

and $28,598 for 1992, 1993, and 1994, respectively.    The addition

to tax under section 6651(a) for 1993 was reduced to $4,461, and

the accuracy-related penalty under section 6662(a) was reduced to

$281, $3,659, and $5,720 for 1992, 1993, and 1994, respectively.

For 1992, there are estimated tax and withholding credits

available to petitioner of $15,000 and $2,100, respectively, that

will fully pay the proposed tax and penalty assessments.    For

1993, there are estimated tax and withholding credits available

of $10,000 and $2,277, respectively.

                              OPINION

     Generally, married taxpayers may elect to file a joint

Federal income tax return.   Sec. 6013(a).   After making the

election, each spouse is jointly and severally liable for the

entire tax due for that taxable year.   Sec. 6013(d)(3).   Under

section 6013(b)(2), where a separate return has been filed, an

election to file jointly may not be made more than 3 years after

the due date of the return or after a notice of deficiency has

been sent for the year.

     A spouse (requesting spouse) may seek relief from joint and

several liability by following procedures established in section
                                - 6 -

6015.   Sec. 6015(a).   A requesting spouse may request relief from

liability under section 6015(b) or, if eligible, may allocate

liability according to provisions under section 6015(c).    Sec.

6015(a).   If relief is not available under section 6015(b) or

(c), an individual may seek equitable relief from joint and

several liability if “taking into account all the facts and

circumstances, it is inequitable to hold the individual liable

for any unpaid tax”.    Sec. 6015(f).

     Petitioner has failed to address the applicable statutory

provisions, the adjustments involved in respondent’s

determination, or the relevant facts.   Petitioner argues that she

did “not know the facts as to amounts owed, when, or why, as

petitioner never had anything to do with these matters”.

Petitioner generally claims that the division of property

pursuant to the divorce decree was not equitable; she received

properties that were foreclosed; the divorce decree was signed

without notice to her; and “the system” failed to treat her

fairly.

1989 and 1990

     Under section 6015(b) and (c), relief from joint and several

liability is available only from proposed or assessed

deficiencies.   Sec. 6015(b)(1)(D), (c)(1).   Neither section

6015(b) nor section 6015(c) permits relief from liabilities that

were reported on a return but remained unpaid.    Hopkins v.
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Commissioner, 121 T.C. 73, 88 (2003). Because the liabilities

from 1989 and 1990 are due to underpayments with respect to

amounts reported on joint returns, petitioner may obtain relief,

if at all, only under section 6015(f).

     We have jurisdiction to review respondent’s denial of

petitioner’s request for equitable relief under section 6015(f).

Jonson v. Commissioner, 118 T.C. 106, 125 (2002), affd. 353 F.3d

1181 (10th Cir. 2003); Butler v. Commissioner, 114 T.C. 276, 292

(2000).   We review such denial of relief to decide whether

respondent abused respondent’s discretion by acting arbitrarily,

capriciously, or without sound basis in fact.    Jonson v.

Commissioner, supra at 125; Butler v. Commissioner, supra at 292.

Whether respondent’s denial of petitioner’s request for relief

under section 6015(f) was an abuse of discretion is a question of

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

282 F.3d 326 (5th Cir. 2002).   Petitioner bears the burden of

proving an abuse of discretion.    Washington v. Commissioner, 120

T.C. 137, 146 (2003); see also Alt v. Commissioner, 119 T.C. 306,

311 (2002) (“Except as otherwise provided in section 6015,

petitioner bears the burden of proof.”); Jonson v. Commissioner,

supra at 113 (same).

     As directed by section 6015(f), the Commissioner has

prescribed procedures to determine whether a taxpayer qualifies

for relief from joint and several liability.    These procedures
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are set forth in Rev. Proc. 2000-15, 2000-1 C.B. 447.   This Court

has upheld the use of these procedures in reviewing a negative

determination.   See Washington v. Commissioner, supra at 147;

Jonson v. Commissioner, supra at 125.   Rev. Proc. 2000-15, sec.

4.01, 2000-1 C.B. at 448, lists seven conditions (threshold

conditions) that must be satisfied before the Commissioner will

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

     If the threshold conditions are satisfied, Rev. Proc.

2000-15, sec. 4.02, 2000-1 C.B. at 448, lists circumstances where

relief will generally be granted, subject to two limitations.     If

it is unclear whether these circumstances are satisfied, the

Commissioner looks to Rev. Proc. 2000-15, sec. 4.03, 2000-1 C.B.

at 448, to determine whether the taxpayer should be granted

equitable relief.

     Rev. Proc. 2000-15, sec. 4.03(1), 2000-1 C.B. at 448, lists

the following six factors that the Commissioner will consider as

weighing in favor of granting relief for an unpaid 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 were denied; (3) the

requesting spouse was abused by the nonrequesting spouse; (4) the

requesting spouse did not know or have reason to know that the

reported liability would be unpaid at the time that the return

was signed; (5) the nonrequesting spouse has a legal obligation
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pursuant to a divorce decree or agreement to pay the unpaid

liability; and (6) the unpaid liability is 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 an unpaid liability (negative factors):    (1) The unpaid

liability is attributable to the requesting spouse; (2) the

requesting spouse knew or had reason to know that the reported

liability would be unpaid at the time that the return was signed;

(3) the requesting spouse significantly benefited (beyond normal

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

will not suffer 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 unpaid liability.    No single factor is

determinative, and the list is not exhaustive.    See Washington v.

Commissioner, supra at 148; Jonson v. Commissioner, supra at 125.

     Petitioner is divorced from Robledo, and the divorce decree

allocates tax liabilities to Robledo.    Only those two factors

weigh in her favor.   Petitioner has not negated her knowledge of

the reported liabilities, has not shown that she would suffer

economic hardship if relief were denied, and has not shown that
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the liabilities are attributable to Robledo.    Her returns for the

3 years subsequent to 1990 were delinquent until 1995.    We cannot

conclude on this record that denial of relief was an abuse of

discretion.

1991

       The filing of a joint return is required for a taxpayer to

be granted relief under section 6015.    Raymond v. Commissioner,

119 T.C. 191 (2002).    Because she filed a separate return for

1991 and the subsequent attempted election of joint return status

was untimely under section 6013(b)(2), petitioner is not entitled

to relief for 1991.

1992, 1993, and 1994

       As detailed in our Findings of Fact, respondent has made

concessions for 1992, 1993, and 1994.    Respondent’s Appeals

Office and petitioner’s representative determined an allocation

of the liabilities for those years under section 6015(c).

Petitioner has not contested the deficiencies or the allocations

and has not shown that she is eligible for additional relief

beyond that already granted to her.

       To be eligible for relief under section 6015(b), petitioner

must show, among other things, that she did not know or have

reason to know of the understatement of tax on the subject

returns; that the understatements were attributable to Robledo;

and that, taking into account all the facts and circumstances, it
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would be inequitable to hold her liable for the deficiency in tax

attributable to the understatement.   In view of petitioner’s

education, we do not accept her generalized allegations that she

knew nothing about tax matters for the years in issue.   She did

not file timely returns for 1992, 1993, or 1994, even though she

received compensation as a school teacher during those years.

She acknowledges that, at the time the returns were filed, she

was represented by an attorney and a certified public accountant.

Petitioner and Robledo lived in a community property State and

together owned rental real estate, some of which petitioner was

awarded in the divorce decree.   Petitioner seeks to be relieved

of liability for taxes on her own income as well as that of

Robledo, asserting that she was unfairly treated in the divorce

proceedings and in the bankruptcy court.   She has not satisfied

the requirements for relief under section 6015(b).   (The relief

that she was granted under section 6015(c) includes any relief

that she might have claimed under section 6015(b) with respect to

items attributable solely to Robledo.)

     For the same reasons, and applying the factors discussed

with respect to 1990, we cannot conclude that denial of relief to

petitioner under section 6015(f) was an abuse of discretion.

We have considered the other arguments made by petitioner.    They
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are irrelevant to the legal issues in this case.   To reflect

respondent’s concessions and the foregoing,

                                        Decision will be entered

                                   under Rule 155.
