                        T.C. Memo. 2009-256



                      UNITED STATES TAX COURT



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



     Docket No. 17984-04.               Filed November 10, 2009.



     Larry Kars, for petitioner.

     Shawna A. Early, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This case is before the Court on

petitioner’s motion for administrative and litigation costs

pursuant to section 7430 and Rule 231.1

     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code) in effect at the time petitioner
filed her petition, and all Rule references are to the Tax Court
                                                   (continued...)
                               - 2 -

     In Wiener v. Commissioner, T.C. Memo. 2008-230 (Wiener I),

we granted petitioner’s request for relief under section 6015(f)

with respect to petitioner’s Federal income tax liabilities for

1979-81.   Petitioner timely moved to vacate our decision in

Wiener I and moved for administrative and litigation costs.       We

granted petitioner’s motion to vacate our decision in order to

consider petitioner’s motion for administrative and litigation

costs.   For the reasons that follow, we shall deny petitioner’s

motion for costs.

                            Background

     In Wiener I we made extensive findings of fact, and we

incorporate those findings in this opinion by reference.     For

convenience and clarity, we repeat below the facts necessary for

disposition of the instant motion.     Petitioner resided in New

York when the petition was filed.

     Petitioner and Jay Wiener (Mr. Wiener) were married in 1952.

As of the date of trial, they were still married.     Petitioner

graduated with a bachelor of arts degree from Syracuse University

in 1951.   Her course work did not include classes in accounting,

finance, or math.   From 1951 through 1954 petitioner worked in

the customer service department of AT&T.     In 1954 petitioner

became a full-time homemaker, and she remained a full-time



     1
      (...continued)
Rules of Practice and Procedure.
                                 - 3 -

homemaker until around the time of trial, when she began selling

clothing from her home.

      During the years in issue petitioner and Mr. Wiener

(collectively, the Wieners) maintained a joint checking account.

Petitioner wrote checks for routine household expenses from the

account, but she relied on Mr. Wiener to make large purchases and

handle the couple’s investments and tax matters.     The bank

statements for the joint checking account were mailed to the

Wieners’ home address.    Mr. Wiener reconciled the account and

monitored the account balance.

      In 1979 Mr. Wiener invested in Sinclair Global Arbitrage

(SGA), a limited partnership.    On November 9, 1979, Mr. Wiener

wrote two checks to SGA from the Wieners’ joint checking account

totaling $106,250; on May 13, 1980, Mr. Wiener wrote a third

check to SGA for $58,839.84.    Petitioner did not sign any of the

checks, nor did she know about them.     Mr. Wiener did not tell

petitioner about the investment in SGA.

      Mr. Wiener received a Schedule K-1, Partner’s Share of

Income, Credits, Deductions, etc., for 1981 that showed he was a

limited partner in SGA.    Petitioner’s name did not appear on the

Schedule K-1, nor did it appear on any correspondence from SGA.

      The Wieners filed joint Federal income tax returns for 1979-

81.   Mr. Wiener’s accountant, Martin Bond (Mr. Bond), prepared

the returns on the basis of information provided by Mr. Wiener
                               - 4 -

and Mr. Wiener’s office manager; petitioner did not provide

information for the preparation of the tax returns, nor did she

discuss the returns with Mr. Bond.     After Mr. Bond prepared each

year’s return, he brought the return to Mr. Wiener’s office,

where Mr. Wiener signed both his name and petitioner’s name to

the return and mailed it to the Internal Revenue Service (IRS).

Petitioner did not review any of the returns for 1979-81.    On

each of the returns, the Wieners reported an overpayment and

claimed a refund.   Petitioner did not know about the refunds, and

she did not benefit from them beyond normal support.

     The Wieners’ joint returns for 1979, 1980, and 1981 deducted

SGA partnership losses of $128,789, $610,080, and $207,517,

respectively.   Respondent audited SGA for 1979-81, disallowed

certain partnership deductions, and mailed a notice of deficiency

to the Wieners.   Petitioner was not involved in the audit, and

Mr. Wiener did not tell her about it.

     A petition was filed in this Court on behalf of the Wieners

seeking a redetermination of the deficiencies for 1979-81, docket

No. 27006-90.   On July 17, 1991, the Court entered a stipulated

decision in docket No. 27006-90.   Petitioner did not sign the

stipulated decision.   In accordance with the stipulated decision,

on August 23, 1991, respondent assessed Federal income tax

deficiencies against the Wieners for 1979 and 1980, and    on

September 30, 1991, respondent assessed an income tax deficiency
                                - 5 -

against the Wieners for 1981 (collectively the 1979-81 tax

liabilities).2

     On November 29, 1991, about 2 or 3 months after respondent

assessed the 1979-81 tax liabilities, petitioner transferred the

marital home (the Morris Lane property) to the Charles Wiener

Trust in consideration for substantial sums previously advanced

by the trust to Mr. Wiener.   On the date of the transfer,

petitioner did not know about the 1979-81 tax liabilities or that

she was personally liable for them.     Following the transfer, the

Wieners continued to live at the Morris Lane property, and they

paid the mortgage and other household expenses from their joint

checking account.

     On January 6, 1992, respondent filed a notice of Federal tax

lien against the Wieners with respect to the 1979-81 tax

liabilities.

     In 2001, pursuant to an agreement between the IRS and the

Wieners, the Federal tax lien that had attached to the Morris

Lane property was released, and the Morris Lane property was

sold.    The Wieners purchased a new residence in Armonk, New York,

that, under the agreement with the IRS, was titled in their joint

names and was subject to the Federal tax lien.    The new home was


     2
      We are unable to determine from the record whether the
assessed amounts include additions to tax or penalties. We
assume that respondent assessed interest as required by the
Internal Revenue Code when he assessed the income tax
deficiencies.
                               - 6 -

purchased with the proceeds from the sale of the Morris Lane

property.   At the time of trial the Wieners resided in the new

residence, and petitioner listed the residence as an asset on

Form 433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals, that she submitted to respondent on or

about March 28, 2005.

     In 2001, in connection with collection activities related to

the 1979-81 tax liabilities, petitioner learned for the first

time that the liabilities were attributable to Mr. Wiener’s

investment in SGA.   At that time one of respondent’s revenue

officers suggested that petitioner apply for relief under section

6015.   On or about March 26, 2002, petitioner filed Form 8857,

Request for Innocent Spouse Relief (And Separation of Liability

and Equitable Relief), on which she requested relief from joint

and several liability for the 1979-81 liabilities pursuant to

section 6015.   On or about October 15, 2003, respondent informed

petitioner that her request for relief had been denied.

Petitioner filed a protest with respondent’s Appeals Office.    On

June 24, 2004, respondent issued a notice of determination that

denied petitioner’s request for relief under section 6015 for

each of the years in issue.   In the notice respondent stated

simply:   “We did not find you eligible for relief” under section

6015(b), (c), or (f) and gave no indication of the analysis the

Appeals Office used or the information it relied on to make its
                               - 7 -

determination.   Petitioner timely petitioned this Court pursuant

to section 6015(e), alleging that respondent’s determination was

in error.   Petitioner argued she was entitled to innocent spouse

relief for 1979-81 under section 6015(b) or, in the alternative,

under section 6015(f).

     We held in Wiener I that petitioner was not entitled to

relief under section 6015(b) because even if she lacked actual

knowledge of the partnership losses claimed on the 1979-81

Federal income tax returns, she had a duty to inquire about the

returns and the losses they showed, and she failed to satisfy the

duty.   Accordingly, we held petitioner had constructive knowledge

of the understatements of tax on the 1979-81 returns, and such

knowledge was fatal to petitioner’s request for relief under

section 6015(b).   However, we also held that petitioner was

entitled to equitable relief under section 6015(f).   We based our

holding with respect to section 6015(f) on credibility

determinations with respect to certain testimony, a thorough

review of the evidence, and a careful analysis of section 6015(f)

and, in particular, Rev. Proc. 2000-15, sec. 4.01, 2000-1 C.B.

447, 448, which sets forth the conditions under which the

Commissioner will grant taxpayers equitable relief from joint and

several liability for Federal income tax.
                               - 8 -

                             Discussion

I.   Section 7430

     Section 7430(a) allows a taxpayer to recover reasonable

administrative and litigation costs incurred in an administrative

or court proceeding brought by or against the United States in

connection with the determination, collection, or refund of any

tax, interest, or penalty.   Reasonable administrative costs are

the reasonable and necessary costs incurred by the taxpayer in

connection with the administrative proceeding, including

administrative fees imposed by the Commissioner, reasonable fees

paid or incurred to retain the services of a representative who

is licensed to practice before the IRS, reasonable expenses of

expert witnesses, and reasonable costs for any study, analysis,

or report that is necessary to the taxpayer’s case.    Sec.

7430(c)(2); sec. 301.7430-4(b)(1), Proced. & Admin. Regs.

Similarly, reasonable litigation costs include reasonable court

costs, reasonable attorney’s fees, reasonable expenses of expert

witnesses, and reasonable costs of any study, analysis, or report

necessary to the taxpayer’s case.   Sec. 7430(c)(1).

     To recover administrative and litigation costs under section

7430(a), the taxpayer must satisfy each of the following

requirements:   (1) The taxpayer must not have unreasonably

protracted the administrative or court proceedings, sec.

7430(b)(3); and (2) the taxpayer must have been the “prevailing
                                  - 9 -

party” in the administrative or court proceeding, sec.

7430(c)(4)(A).      In addition, with respect to a request for

litigation costs, the taxpayer must also prove that he or she

exhausted all administrative remedies available within the IRS,

sec. 7430(b)(1).

      Respondent concedes that petitioner exhausted all

administrative remedies available within the IRS and did not

unreasonably protract the proceedings.      Thus, the dispositive

issue in this case is whether petitioner was the prevailing party

in Wiener I.

      A taxpayer is the prevailing party if:     (1) The taxpayer

substantially prevailed with respect to the amount in controversy

or with respect to the most significant issue or set of issues;

(2) the taxpayer’s net worth does not exceed $2 million; and (3)

the position of the Commissioner was not substantially justified.

Sec. 7430(c)(4); see also sec. 301.7430-5(a), Proced. & Admin.

Regs.      The taxpayer has the burden of proof with respect to

requirements (1) and (2); the Commissioner has the burden of

proof with respect to requirement (3).      Sec. 7430(c)(4)(B); Rule

232(e).

II.   The Section 7430(c)(4) Requirements

      A.      The “Substantially Prevailed” Requirement

      The term “prevailing party” means any party in a proceeding

to which section 7430(a) applies (other than the United States)
                                - 10 -

who has substantially prevailed with respect to the amount in

controversy or with respect to the most significant issue or set

of issues presented.    Sec. 7430(c)(4)(A); sec. 301.7430-5(e),

Proced. & Admin. Regs.    Any determination as to whether a party

is the prevailing party may be made by agreement of the parties;

by the Commissioner, in the case of a final determination

following an administrative proceeding; or by a court, in the

case of a final determination made by a court.     Sec.

7430(c)(4)(C).

     In Wiener I petitioner prevailed with respect to the amount

in controversy inasmuch as we granted petitioner relief from

joint and several liability.     Petitioner also prevailed with

respect to the most important issue; i.e., whether she was

entitled to relief under section 6015.     Accordingly, we conclude

that petitioner substantially prevailed in Wiener I.

     B.   The Net Worth Requirement

     Section 7430(c)(4)(A)(ii) provides, in relevant part, that

the term “prevailing party” means a party who meets the

requirements of 28 U.S.C. sec. 2412(d)(2)(B).     Title 28 U.S.C.

sec. 2412(d)(2)(B) defines the term “party” as “an individual

whose net worth did not exceed $2,000,000 at the time the civil

action was filed”.     Further, Rule 231(b)(4) provides that a

motion for an award of reasonable administrative or litigation

costs must include a statement that the taxpayer meets the net
                                - 11 -

worth requirements of 28 U.S.C. sec. 2412(d)(2)(B) and must be

supported by an affidavit executed by the moving party and not by

counsel for the moving party.

     After an initial foot fault,3 petitioner satisfied the

requirements of 28 U.S.C. sec. 2412(d)(2)(B) and Rule

231(b)(4) by filing and signing an affidavit attesting that

on September 24, 2004, her net worth did not exceed $2

million.    Respondent does not dispute the substance of the

affidavit.    Accordingly, we conclude that petitioner has

satisfied the net worth requirement.

     C.     The “Not Substantially Justified” Requirement

     The next issue we must consider is whether respondent’s

position was substantially justified.     If it was, petitioner

cannot be the prevailing party, and we will not award

administrative or litigation costs.      Sec. 7430(c)(4)(B); see also

Paul Frehe Enters., Inc. v. Commissioner, 106 T.C. 436, 437

(1996).    Whether the Commissioner’s position was substantially

justified depends on all the facts and circumstances.       Price v.

Commissioner, 102 T.C. 660, 662 (1994), affd. without published


     3
      Petitioner’s motion for administrative and litigation
costs, which was signed by petitioner’s counsel but not by
petitioner, stated that petitioner’s net worth was not in excess
of $2 million. The motion was not accompanied by an affidavit
attesting that petitioner’s net worth did not exceed $2 million.
Respondent noted the error in his response to petitioner’s motion
for administrative and litigation costs. Petitioner filed a
motion for leave to file such an affidavit, and we granted
petitioner’s motion.
                               - 12 -

opinion sub nom. TSA/Stanford Associates, Inc. v. Commissioner,

77 F.3d 490 (9th Cir. 1996).   A position is substantially

justified if it has a reasonable basis in fact and law and is

justified to a degree that would satisfy a reasonable person.

Pierce v. Underwood, 487 U.S. 552, 565 (1988).   The fact that the

Commissioner ultimately loses or concedes an issue is not

determinative with respect to a taxpayer’s claim for

administrative and litigation costs.    Vines v. Commissioner, T.C.

Memo. 2006-258.   Various courts have held that the Commissioner’s

position is substantially justified where, inter alia, resolution

of the issue required an analysis of facts that did not clearly

favor either party’s position, see Kaffenberger v. United States,

314 F.3d 944, 960 (8th Cir. 2003), and where there was legal

precedent to support the Commissioner’s position, see DeVenney v.

Commissioner, 85 T.C. 927, 930 (1985); ABC Rentals of San

Antonio, Inc. v. Commissioner, T.C. Memo. 2000-47.

     Where a taxpayer seeks both administrative and litigation

costs, we apply the “substantially justified” standard as of the

two separate dates on which the Commissioner took a position,

first in the administrative proceeding and later in the court

proceeding.   Sec. 7430(c)(7)(A) and (B); Maggie Mgmt. Co. v.

Commissioner, 108 T.C. 430, 442 (1997).   For purposes of the

administrative proceeding, the Commissioner’s position is the

position articulated in the notice of determination; for purposes
                              - 13 -

of the court proceeding, the Commissioner’s position is the

position set forth in his answer to the taxpayer’s petition.

Maggie Mgmt. Co. v. Commissioner, supra at 442.     Although the

Commissioner’s positions in the administrative and court

proceedings are often considered separately, we can consider them

together where the Commissioner maintains the same position

throughout.   Foy v. Commissioner, T.C. Memo. 2005-116.

     In deciding whether respondent’s position was substantially

justified, it is useful to consider the Code’s approach to relief

from joint and several liability.   Section 6013(d)(3) provides

that if a married couple files a joint Federal income tax return,

the couple’s liability for the tax shall be joint and several.

However, strict adherence to the rule of joint and several

liability can lead to unjust results where, for example, a

taxpayer becomes burdened with onerous tax liabilities created by

a former spouse through no fault of the taxpayer.    See, e.g.,

Kwong v. Commissioner, 65 T.C. 959, 963 (1976).     For this reason,

Congress in 1971 enacted section 6013(e) (the predecessor to

section 6015) to relieve taxpayers of joint and several liability

in certain circumstances.   Mora v. Commissioner, 117 T.C. 279,

284 (2001).

     In 1998 Congress repealed section 6013(e) and enacted

section 6015, which applies to liabilities arising after July 22,

1998, as well as those that arose before July 22, 1998, but
                               - 14 -

remained unpaid as of July 22, 1998.    Sec. 1.6015-8, Income Tax

Regs.    Under section 6015 a taxpayer may be relieved from joint

and several liability under three circumstances.    First, a

taxpayer who filed a joint Federal income tax return with his or

her spouse may seek relief under section 6015(b) if, among other

things, the taxpayer establishes that in signing the return he or

she did not know, and had no reason to know, that there was an

understatement of tax on the return and that it would be

inequitable to hold the taxpayer liable for the deficiency.

Second, in the case of a taxpayer who is no longer married to, or

is legally separated from, the person with whom he or she filed

the joint Federal income tax return, section 6015(c) provides for

relief under certain circumstances.4    Finally, a taxpayer who

does not qualify for relief under section 6015(b) or (c) may seek

equitable relief under section 6015(f).

            1.   Section 6015(b)

     Respondent maintained the same position throughout the

administrative and court proceedings with respect to petitioner’s

request for relief under section 6015(b).    Specifically,

respondent argued petitioner was not entitled to relief because

she failed to fulfill her duty of inquiry, and she therefore had

constructive knowledge of the understatements for 1979-81.


     4
      Because petitioner is still married to Mr. Wiener, and
because the parties agree that sec. 6015(c) does not apply, we
need not discuss sec. 6015(c) in any greater depth.
                                  - 15 -

       Respondent’s position had a reasonable basis in fact and

law.       Indeed, we sustained respondent’s determination to deny

petitioner’s request for section 6015(b) relief for the reasons

respondent cited in the court proceedings.       As we wrote in Wiener

I:

       We conclude that petitioner, under the facts and
       circumstances of this case, had a duty to inquire
       regarding the partnership losses claimed on her 1979-81
       returns. Because she failed to satisfy her duty of
       inquiry, we find that she had reason to know of the
       understatements. [Citations and fn. ref. omitted.]

       We conclude, therefore, that respondent’s position with

respect to petitioner’s request for relief under section 6015(b)

was substantially justified.

               2.   Section 6015(f)

       Respondent maintained throughout the administrative and

court proceedings that petitioner was not entitled to equitable

relief.       However, the basis for respondent’s position in the

administrative proceeding is unclear.       Respondent’s notice of

determination simply states:       “We did not find you eligible for

relief under Section 6015(f).”

       Before we issued our Opinion in Porter v. Commissioner, 132

T.C. ___ (2009),5 we examined the Commissioner’s determinations


       5
      Sec. 6015 was amended by the Tax Relief and Health Care Act
of 2006, Pub. L. 109-432, div. C, sec. 408(a), 120 Stat. 3061.
We acknowledged in Wiener I that the 2006 amendments to sec. 6015
raised questions concerning the appropriate standard of review in
sec. 6015(f) cases. See Porter v. Commissioner, 130 T.C. 115,
                                                   (continued...)
                               - 16 -

under section 6015(f) for abuse of discretion.    However, because

the record in Wiener I did not contain respondent’s analysis in

support of his determination under section 6015(f),6 we were

unable to apply an abuse of discretion standard.    Instead we

determined de novo whether the Commissioner properly concluded

that petitioner was not entitled to equitable relief under

section 6015(f).    On the basis of that fact-intensive analysis,

we ultimately concluded that petitioner was entitled to relief

under section 6015(f).

       We shall apply a similar analysis in this proceeding.   This

time, however, rather than ask whether respondent’s position with

respect to petitioner’s request for section 6015(f) relief was

correct on the merits, we will examine the record to determine

whether respondent’s position had a reasonable basis in fact and

law.




       5
      (...continued)
144-146 (2008) (concurring opinion of Judge Wherry, in which
seven other Judges joined). In a subsequent Opinion in Porter v.
Commissioner, 132 T.C.     (2009), we resolved the issue by
holding that a de novo standard of review is the appropriate
standard of review under sec. 6015, including under subsec. (f).
       6
      Neither the notice of determination nor the accompanying
supplemental case memorandum contained any analysis or recited
sufficient facts for the Court to review using an abuse of
discretion standard.
                             - 17 -

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 Commissioner has proscribed procedures for analyzing a

request for relief under section 6015(f).   The procedures IRS

personnel were to apply to the review of petitioner’s request

are set forth in Rev. Proc. 2000-15, supra.7   Rev. Proc. 2000-15,

sec. 4.01, states that, before the Commissioner will consider the

requesting spouse’s request for relief under section 6015(f), the

requesting spouse must satisfy the following seven threshold

conditions:

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

          (2) Relief is not available to the requesting
     spouse under § 6015(b) or 6015(c);




     7
      As we stated in Wiener I, Rev. Proc. 2003-61, 2003-2 C.B.
296, which superseded Rev. Proc. 2000-15, 2000-1 C.B. 447, is
effective for requests for relief filed on or after Nov. 1, 2003,
and for requests for relief pending on Nov. 1, 2003, for which no
preliminary determination letter has been issued as of that date.
Petitioner requested relief on Mar. 26, 2002, and respondent
issued the preliminary determination letter before Nov. 1, 2003;
therefore, Rev. Proc. 2003-61, supra, is inapplicable here.
                             - 18 -

          (3) The requesting spouse applies for relief no
     later than two years after the date of the Service’s
     first collection activity after July 22, 1998, with
     respect to the requesting spouse;

          (4) Except as provided in the next sentence, the
     liability remains unpaid. A requesting spouse is
     eligible to be considered for relief in the form of a
     refund of liabilities for: (a) amounts paid on or
     after July 22, 1998, and on or before April 15, 1999;
     and (b) installment payments, made after July 22, 1998,
     pursuant to an installment agreement entered into with
     the Service and with respect to which an individual is
     not in default, that are made after the claim for
     relief is requested;

          (5) No assets were transferred between the spouses
     filing the joint return as part of a fraudulent scheme
     by such spouses;

          (6) There were no disqualified assets transferred
     to the requesting spouse by the nonrequesting spouse.
     If there were disqualified assets transferred to the
     requesting spouse by the nonrequesting spouse, relief
     will be available only to the extent that the liability
     exceeds the value of such disqualified assets. For this
     purpose, the term “disqualified asset” has the meaning
     given such term by § 6015(c)(4)(B); and

          (7) The requesting spouse did not file the return
     with fraudulent intent.

     If a requesting spouse satisfies each of the seven threshold

conditions, Rev. Proc. 2000-15, supra, instructs IRS personnel to

determine whether the requesting spouse satisfies the additional

requirements set forth in either Rev. Proc. 2000-15, sec. 4.02 or

4.03.

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

that, in cases where the threshold conditions set forth in Rev.

Proc. 2000-15, sec. 4.01, have been satisfied but the requesting
                              - 19 -

spouse does not qualify for relief under Rev. Proc. 2000-15, sec.

4.02, 2000-1 C.B. at 448, equitable relief may be granted under

section 6015(f) if, taking into account all the facts and

circumstances, it would be inequitable to hold the requesting

spouse responsible for all or part of the liability.   In making

the decision, the Commissioner will weigh a number of positive

and negative factors.   The following list is not exclusive, and

no single factor is determinative:

          (1) Factors weighing in favor of relief. The
     factors weighing in favor of relief include, but are
     not limited to, the following:

               (a) Marital status. The requesting spouse is
          separated (whether legally separated or living
          apart) or divorced from the nonrequesting spouse.

               (b) Economic hardship. The requesting spouse
          would suffer economic hardship (within the meaning
          of section 4.02(1)(c) of this revenue procedure)
          if relief from the liability is not granted.

               (c) Abuse. The requesting spouse was abused
          by the nonrequesting spouse, but such abuse did
          not amount to duress.

               (d) No knowledge or reason to know. In the
          case of a liability that was properly reported but
          not paid, the requesting spouse did not know and
          had no reason to know that the liability would not
          be paid. In the case of a liability that arose
          from a deficiency, the requesting spouse did not
          know and had no reason to know of the items giving
          rise to the deficiency.

               (e) Nonrequesting spouse’s legal obligation.
          The nonrequesting spouse has a legal obligation
          pursuant to a divorce decree or agreement to pay
          the outstanding liability. This will not be a
          factor weighing in favor of relief if the
          requesting spouse knew or had reason to know, at
                        - 20 -

    the time the divorce decree or agreement was
    entered into, that the non-requesting spouse would
    not pay the liability.

         (f) Attributable to nonrequesting spouse.
    The liability for which relief is sought is solely
    attributable to the nonrequesting spouse.

     (2) Factors weighing against relief. The factors
weighing against relief include, but are not limited
to, the following:

         (a) Attributable to the requesting spouse.
    The unpaid liability or item giving rise to the
    deficiency is attributable to the requesting
    spouse.

         (b) Knowledge, or reason to know. A
    requesting spouse knew or had reason to know of
    the item giving rise to a deficiency or that the
    reported liability would be unpaid at the time the
    return was signed. This is an extremely strong
    factor weighing against relief. Nonetheless, when
    the factors in favor of equitable relief are
    unusually strong, it may be appropriate to grant
    relief under § 6015(f) in limited situations where
    a requesting spouse knew or had reason to know
    that the liability would not be paid, and in very
    limited situations where the requesting spouse
    knew or had reason to know of an item giving rise
    to a deficiency.

         (c) Significant benefit. The requesting
    spouse has significantly benefitted (beyond normal
    support) from the unpaid liability or items giving
    rise to the deficiency. See § 1.6013-5(b).

         (d) Lack of economic hardship. The
    requesting spouse will not experience economic
    hardship (within the meaning of section 4.02(1)(c)
    of this revenue procedure) if relief from the
    liability is not granted.

         (e) Noncompliance with federal income tax
    laws. 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 or
    years to which the request for relief relates.
                             - 21 -

               (f) Requesting spouse’s legal obligation.
          The requesting spouse has a legal obligation
          pursuant to a divorce decree or agreement to pay
          the liability.

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

     In Wiener I respondent argued that petitioner failed to

satisfy Rev. Proc. 2000-15, sec. 4.01(5), because petitioner

transferred the Morris Lane property to a family trust for less

than adequate consideration in an attempt to place her assets

beyond the reach of respondent.   In support, respondent cited

Doyle v. Commissioner, T.C. Memo. 2003-96, affd. 94 Fed. Appx.

949 (3d Cir. 2004), in which we found it significant that the

taxpayer and her husband had tried to make themselves collection

proof by encumbering their personal residence, transferring money

to their children, and taking expensive vacations.   In the

alternative, respondent argued that even if petitioner satisfied

the threshold conditions of Rev. Proc. 2000-15, sec. 4.01, the

factors enumerated in Rev. Proc. 2000-15, sec. 4.03, weighed

against granting petitioner’s request for equitable relief.

     Although we ultimately granted petitioner’s request for

section 6015(f) relief, respondent’s position found factual

support in the record and legal support in our holding in Doyle

v. Commissioner, supra,8 and similar cases in which taxpayers


     8
      Admittedly, Doyle v. Commissioner, T.C. Memo. 2003-96,
affd. 94 Fed. Appx. 949 (3d Cir. 2004), is not precisely
analogous to this case, but we think the facts are similar enough
                                                   (continued...)
                              - 22 -

attempted to transfer assets to avoid paying their tax

liabilities.9   Respondent’s position throughout the

administrative and litigation proceedings reflected his

determination that petitioner, acting with knowledge of the 1979-

81 tax liabilities, had participated in an effort to make herself

and her husband collection proof.   That determination was

apparently based on respondent’s evaluation of information

submitted by petitioner and her husband and a judgment regarding

the credibility of petitioner and her husband.    Under these

circumstances, where the credibility of petitioner and her

husband was a legitimate concern and the facts did not clearly

favor one party’s position over the other party’s position, we do

not believe that respondent’s position was unreasonable.     See

Kaffenberger v. United States, 314 F.3d at 960.    Accordingly, we

conclude that respondent’s position was substantially justified.




(...continued)
that it was reasonable for respondent to cite Doyle for the
proposition that a taxpayer who transfers or encumbers assets in
an effort to thwart the Commissioner’s collection activity is not
entitled to sec. 6015 relief.
     9
      See, e.g., Etkin v. Commissioner, T.C. Memo. 2005-245
(taxpayer’s claim for sec. 6015(f) relief denied where taxpayer’s
husband transferred property to her as part of a scheme to
frustrate the Commissioner’s collection activities); see also
Ohrman v. Commissioner, T.C. Memo. 2003-301 (taxpayer’s claim for
sec. 6015(f) relief was denied where taxpayer received a transfer
of a disqualified asset from her former spouse in violation of
Rev. Proc. 2000-15, sec. 4.01(6), 2000-1 C.B. 447, 448), affd.
157 Fed. Appx. 997 (9th Cir. 2005).
                                - 23 -

III.    Conclusion

       Although we granted petitioner’s request for relief under

section 6015(f) in Wiener I, our decision turned on a fact-

intensive analysis and an evaluation of the credibility of

petitioner.    The actions of petitioner and her husband with

respect to the transfer of their home and the reporting of trust

interests on forms submitted to respondent reasonably raised

suspicions that respondent resolved by deciding not to grant

relief under section 6015(f).    Although we ultimately accepted

petitioner’s explanation of these actions as credible, the mere

fact that we held in favor of petitioner does not establish that

respondent’s position was not substantially justified.    On the

contrary, we conclude that respondent’s position in the

administrative and court proceedings was substantially justified,

and petitioner therefore shall not be treated as the prevailing

party in Wiener I for purposes of section 7430.

       We have considered all remaining arguments made by the

parties and, to the extent not discussed above, find those

arguments to be irrelevant, moot, or without merit.
                             - 24 -

     To reflect the foregoing, petitioner’s motion for

administrative and litigation costs will be denied.


                                   An appropriate order and

                              decision will be entered.
