                  T.C. Memo. 2007-86



                UNITED STATES TAX COURT



            DIANE C. LINCIR, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10138-04.             Filed April 11, 2007.



     P and her former spouse were parties to earlier
litigation in this Court in which P stipulated she was
not entitled to relief under former sec. 6013(e),
I.R.C. 1986. After this stipulation was filed and
before this Court issued its first opinion in the
earlier litigation, the Congress enacted sec. 6015(b)
and (c), I.R.C. 1986, which provides avenues of relief
that were not available under the former statute. The
Congress also enacted sec. 6015(g)(2), I.R.C. 1986,
which provides that a final court decision “shall be
conclusive” except as to qualification for relief under
sec. 6015(b) or (c), but that the exception applies
only if both of the following apply: (1) The relief
was not an issue in the proceeding that resulted in the
final court decision and (2) the court does not
determine that “the individual participated
meaningfully” in the proceeding that resulted in the
final court decision.
                               - 2 -

          The earlier litigation resulted in a decision that
     became final. Lincir v. Commissioner, T.C. Memo. 1999-
     98, supplemented 115 T.C. 293 (2000), affd. 32 Fed.
     Appx. 278 (9th Cir. 2002). P filed the instant case
     for innocent spouse relief under sec. 6015, I.R.C.
     1986. P moves for partial summary judgment that she is
     not barred from claiming innocent spouse relief even
     though, for purposes of the instant motion only, P
     concedes her meaningful participation in the earlier
     proceeding, “within the meaning of I.R.C.
     §6015(g)(2)”.

          Held: P’s stipulated concession precludes her
     entitlement to judgment as a matter of law, and so P’s
     partial summary judgment motion is denied.



     Michael D. Savage, for petitioner.

     Michael R. Skutley, for respondent.



                        MEMORANDUM OPINION


     CHABOT, Judge:   This matter is before us on petitioner’s

motion under Rule 1211 for partial summary judgment that

petitioner is permitted to claim relief under section 60152 for

1978 through 1982, because relief under that section was not

available to her when she litigated income tax deficiencies for

the same years in a prior case in this Court.



     1
       Unless indicated otherwise, all Rule references are to the
Tax Court Rules of Practice and Procedure.
     2
       Unless indicated otherwise, all section references are to
sections of the Internal Revenue Code of 1986 as in effect for
proceedings commenced at the time the petition in the instant
case was filed.
                               - 3 -

     The instant case is a claim for “innocent spouse” relief

under subsection (b) or (c) of section 6015.   See Rules 320-325;

sec. 6015(e).   The prior case is docket No. 22934-89, hereinafter

sometimes referred to as the 1989 case.

     The issue for decision is whether to grant petitioner’s

motion for partial summary judgment that she is not barred by the

doctrine of res judicata from innocent spouse relief under

section 6015, even if she meaningfully participated in the 1989

case.3

     Our statements as to the facts are based entirely on the

parties’ stipulations of facts and exhibits, those matters that

are admitted in the pleadings, those matters that are admitted in

the motion papers, those matters set forth in affidavits

submitted by the parties, and the opinions issued by this Court

in the 1989 case.




     3
       Petitioner’s motion does not use the term “res judicata”,
or the term “claim preclusion”. However, we conclude from the
parties’ legal memoranda that the instant motion is intended to
deal solely with the application of res judicata and, even in
that limited setting, is based on petitioner’s limited concession
as to meaningful participation in the 1989 case. See infra note
4. So, for example, petitioner’s motion does not deal with the
collateral estoppel defenses raised in respondent’s answer. See
Rule 39.

     Also, we note that respondent did not file a cross-motion on
this issue. See Elect. Arts, Inc. v. Commissioner, 118 T.C. 226,
238, 278 (2002).
                                - 4 -

                            Background

     When the petition was filed in the instant case, petitioner

resided in San Pedro, California.    Petitioner filed joint income

tax returns with her then-husband, Tom I. Lincir (hereinafter

sometimes referred to as Lincir), for each of the years 1978

through 1982.   These years were the subject of litigation in the

1989 case, in which respondent determined deficiencies in, and

additions to, petitioner’s and Lincir’s Federal income tax for

1978 through 1982 aggregating more than $600,000; respondent also

determined that petitioner and Lincir were liable for increased

interest on underpayments attributable to a tax-motivated

transaction under section 6621(c).      Issues in the 1989 case were

addressed in Lincir v. Commissioner, T.C. Memo. 1999-98, and

Lincir v. Commissioner, 115 T.C. 293 (2000), affd. 32 Fed. Appx.

278 (9th Cir. 2002).   We summarize the factual and procedural

background briefly here and make additional findings helpful in

ruling on the instant motion.

     The setting of the 1989 case is described as follows in

Lincir v. Commissioner, T.C. Memo. 1999-98:

          The deficiencies in this case result from
     respondent’s disallowance of certain losses. The
     losses include those attributable to petitioners’
     [i.e., petitioner’s and Lincir’s] participation in the
     “Arbitrage and Carry” gold trading promoted by Futures
     Trading, Inc. (FTI). The losses also include those
     attributable to petitioners’ participation in the
     Treasury bill (T-bill) option and stock forward
     transactions promoted by Merit Securities, Inc.
     (Merit), a company that is related to FTI.
                                - 5 -

On September 18, 1989, Louis Samuel filed the petition for

petitioner and Lincir in the 1989 case.    On January 21, 1992,

Michael D. Savage (petitioner’s counsel in the instant case)

entered his appearance in the 1989 case.    On April 9, 1992, the

petition in the 1989 case was amended to claim innocent spouse

treatment for petitioner under section 6013(e) as it then

existed.   On July 1, 1992, the parties in the 1989 case entered

into a stipulated settlement of certain of the tax shelter

issues.    The 1989 case was set for trial in Los Angeles and then

continued generally.   There followed numerous orders, reports,

and a stipulation of facts, and the 1989 case was set for trial

in San Francisco.   The 1989 case was again continued and again

set for trial in San Francisco.   The 1989 case was then

consolidated with numerous other dockets, then some of those

dockets were severed from the consolidated group, then the trial

for the remaining dockets in the consolidated group (including

the 1989 case) was again continued, and again set to take place

in San Francisco.   On August 1, 1996, petitioner and Lincir

entered into a stipulation of settled issues relating to certain

tax shelter issues, agreeing to be bound by the determinations as

to those issues in certain designated lead cases.    On August 15,

1996, the 1989 case was severed from consolidation.    On January

30, 1997, there was a 1-day trial in the 1989 case.    At the

conclusion of the trial in the 1989 case, the parties thereto
                                - 6 -

stipulated orally that petitioner “conceded the innocent spouse

issue under section 6013(e)”.    See Lincir v. Commissioner, T.C.

Memo. 1999-98 n.3.    This concession was embodied in a written

stipulation of settled issues in the 1989 case, filed on March

17, 1997.

     Petitioner meaningfully participated in the 1989 case within

the meaning of section 6015(g)(2).4

     On January 28, 1999, this Court decided in favor of the

Commissioner the issues decided in the lead cases; none of the

taxpayers in the lead cases appealed this Court’s decision.      This

Court’s opinion in the 1989 case was filed thereafter on March

29, 1999.    Lincir v. Commissioner, T.C. Memo. 1999-98.     A dispute

arose regarding the computations under Rule 155 in the 1989 case;

this was resolved in favor of respondent.      Lincir v.

Commissioner, 115 T.C. 293 (2000).      Decision was entered October

2, 2000.    Petitioner and Lincir appealed.   This Court’s

determinations were affirmed.    Lincir v. Commissioner, 32 Fed.

Appx. 278 (9th Cir. 2002).

     After the trial and before this Court filed the first

opinion in the 1989 case, the Congress enacted the Internal

Revenue Service Restructuring and Reform Act of 1998, Pub. L.

105-206, 112 Stat. 685, hereinafter sometimes referred to as the


     4
       So stipulated. The parties further stipulate that this
stipulation “is made solely for purposes of the petitioner’s
motion for partial summary judgment and for no other purpose.”
                               - 7 -

1998 Act.   Section 3201(e)(1) of the 1998 Act repealed section

6013(e), the innocent spouse provisions which had been in effect

at the time of the trial in the 1989 case (112 Stat. 740);

section 3201(a) of the 1998 Act enacted section 6015 (112 Stat.

734).   Section 3201(g)(1) of the 1998 Act provided in pertinent

part that both the section 6013(e) repeal and the section 6015

enactment “shall apply to * * * any liability for tax arising on

or before such date [the date of the enactment of the Act, July

22, 1998] but remaining unpaid as of such date.”   112 Stat. 740.

     After petitioner and Lincir filed their notice of appeal

from our decision in the 1989 case and before that decision was

affirmed by the Court of Appeals, the Congress enacted the

Consolidated Appropriations Act, 2001, which included the

Community Renewal Tax Relief Act of 2000, Pub. L. 106-554, 114

Stat. 2763, 2763A-587, hereinafter sometimes referred to as the

2000 Act.   The 2000 Act made several changes to section 6015,

including the enactment of the present texts of section

6015(g)(2) and section 6015(e)(1)(A).   Pars. (2) and (3)(B) of

sec. 313(a) of Appendix G of Pub. L. 106-554, 114 Stat. at 2763A-

640, 2763A-641.   The 2000 Act provided in pertinent part (sec.

313(f) of Appendix G of Pub. L. 106-554) that these changes

“shall take effect on the date of the enactment of this Act.

[Dec. 21, 2000].”   114 Stat. at 2763A-643.
                               - 8 -

      On November 21, 2001, while the 1989 case was still before

the Court of Appeals, petitioner filed with respondent a Form

8857, Request for Innocent Spouse Relief.   At that time,

respondent had not yet begun collection activities against

petitioner, within the meaning of section 6015(c)(3)(B).    On

April 14, 2004, respondent issued a Notice of Determination

denying the requested innocent spouse relief.

                            Discussion

I.   The Setting

      The matter before us in petitioner’s motion for partial

summary judgment is quite limited.

      In the instant case’s answer, respondent relies on (1) the

doctrine of res judicata to bar any relief under section 6015,

(2) the doctrine of collateral estoppel to bar relitigation of

whether petitioner knew or had reason to know of substantial

understatements of tax for the years in the 1989 case, and (3)

the doctrine of collateral estoppel to bar relitigation of

whether it would be inequitable to hold petitioner jointly liable

for the deficiencies for the years in the 1989 case.

      Thus the effect of our ruling on petitioner’s motion is to

set the parameters for further litigation on whether petitioner

is precluded from making claims under section 6015.    The actual

claims under section 6015 have not yet been presented.
                               - 9 -

II.   Summary Judgment

      Summary judgment is a device used to expedite litigation; it

is intended to avoid unnecessary and expensive trials.    However,

it is not a substitute for trial; it should not be used to

resolve genuine disputes over material factual issues.     Cox v.

American Fidelity & Casualty Co., 249 F.2d 616, 618 (9th Cir.

1957); Vallone v. Commissioner, 88 T.C. 794, 801 (1987).     A

decision will be rendered on a motion for summary judgment if the

pleadings, answers to interrogatories, depositions, admissions,

and other acceptable materials, together with the affidavits, if

any, show that there is not any genuine issue as to any material

fact and that a decision may be rendered as a matter of law.

Rule 121(b).   A partial summary adjudication may be made which

does not dispose of all the issues in the case.   Id.

      Because the effect of granting a motion for summary judgment

is to decide the case against a party without allowing that party

an opportunity for a trial, the motion should be “cautiously

invoked” and granted only after a careful consideration of the

case.   Associated Press v. United States, 326 U.S. 1, 6 (1945);

Cox v. American Fidelity & Casualty Co., 249 F.2d at 618; Kroh v.

Commissioner, 98 T.C. 383, 390 (1992).

      Petitioner, as the moving party, has the burden of showing

the absence of a genuine issue as to any material fact.    For

these purposes, the party opposing the motion is to be afforded
                                - 10 -

the benefit of all reasonable doubt, and the material submitted

by both sides must be viewed in the light most favorable to the

opposing party; that is, all doubts as to the existence of an

issue of material fact must be resolved against the movant.

E.g., Adickes v. Kress & Co., 398 U.S. 144, 157 (1970); Dreher v.

Sielaff, 636 F.2d 1141, 1143 n.4 (7th Cir. 1980); Kroh v.

Commissioner, 98 T.C. at 390.

     In the instant case, respondent has not filed any cross-

motion for partial summary judgment.     Where, as in the instant

case, only one side has moved for summary judgment, there is

implicit in the movant’s obligations as to material facts that

the movant has to persuade the Court that she has correctly

identified what facts are material.      Elect. Arts, Inc. v.

Commissioner, 118 T.C. 226, 238 (2002).

     Respondent “strongly agrees with the material facts

surrounding the narrow issue that petitioner presents in her

motion.”

     We proceed to consider whether partial summary judgment for

petitioner may be rendered as a matter of law.     Our understanding

of what are the material facts affects our conclusions as to how

the law applies.
                                - 11 -

III.   Res Judicata

       A.   In General

       The Supreme Court in Commissioner v. Sunnen, 333 U.S. 591,

597 (1948), summarized res judicata, also known as claim

preclusion, as follows:

       The rule provides that when a court of competent
       jurisdiction has entered a final judgment on the merits
       of a cause of action, the parties to the suit and their
       privies are thereafter bound “not only as to every
       matter which was offered and received to sustain or
       defeat the claim or demand, but as to any other
       admissible matter which might have been offered for
       that purpose.” Cromwell v. County of Sac, 94 U.S. 351,
       352. The judgment puts an end to the cause of action,
       which cannot again be brought into litigation between
       the parties upon any ground whatever, absent fraud or
       some other factor invalidating the judgment. * * *

       As to the application of the doctrine in the context of

income tax litigation the Court stated in Sunnen:

       Income taxes are levied on an annual basis. Each year
       is the origin of a new liability and of a separate
       cause of action. Thus if a claim of liability or non-
       liability relating to a particular tax year is
       litigated, a judgment on the merits is res judicata as
       to any subsequent proceeding involving the same claim
       and the same tax year. * * * [Id. at 598.]

       As a general rule, where the Tax Court has entered a

decision for a taxable year, both the taxpayer and the

Commissioner (with certain exceptions) are barred from reopening

that year.     Burke v. Commissioner, 105 T.C. 41, 47 (1995);

Hemmings v. Commissioner, 104 T.C. 221, 233 (1995).    It has also

been held that “the Tax Court’s jurisdiction, once it attaches,

extends to the entire subject of the correct tax for the
                                - 12 -

particular year.”   Erickson v. United States, 159 Ct. Cl. 202,

309 F.2d 760, 767 (1962); see Naftel v. Commissioner, 85 T.C.

527, 533 (1985).

     An agreed or stipulated judgment is a judgment on the merits

for purposes of res judicata.    Baker v. IRS, 74 F.3d 906, 910

(9th Cir. 1996), and cases there cited.     It follows that, for res

judicata purposes, the decision incorporates those elements that

the parties have settled by stipulation as well as those that

have been redetermined by the Court.

     Res judicata is essentially a court-created rule.

Commissioner v. Sunnen, 333 U.S. at 597.      Although the general

outlines of the rule are relatively straightforward, the details

applicable in certain cases may be quite intricate.     See, e.g.,

the discussion in Hemmings v. Commissioner, 104 T.C. at 230-235.

In addition, the Congress sometimes enacts legislation that

overrides or modifies res judicata.      See, e.g., Burke v.

Commissioner, 105 T.C. at 47 (opinion of the Court), 52 (Chabot,

J., concurring), 62-63 (Swift, J., concurring in the result

only).

     B.   Innocent Spouse

     Under the law before the 1998 Act, the cause of action in

the 1989 case included the possibility of innocent spouse relief.

Thus, but for the 1998 Act, the resolution of the 1989 case by

entry of decision which became final would have precluded
                               - 13 -

reopening the “claim of liability or non-liability relating to a

particular tax year”, in the instant case, 1978 through 1982.

Commissioner v. Sunnen, 333 U.S. at 598; Vetrano v. Commissioner,

116 T.C. 272, 280 (2001).   In particular, for these purposes it

would not matter that the innocent spouse claim in the 1989 case

was resolved by the parties’ stipulation rather than by the

Court’s holding on the merits.

     The 1998 Act revised the innocent spouse rules to provide

avenues for relief that were not available under the former

statute, provided for elections to claim certain kinds of relief,

gave jurisdiction to this Court “to determine the appropriate

relief available to the individual under this section” (sec.

6015(e)(1)(A)), and repealed former section 6013(e).   Newly

enacted section 6015(e)(3) provided as follows:

     (3) Applicable rules.--

          (A) Allowance of credit or refund.-–Except as
     provided in subparagraph (B), notwithstanding any other
     law or rule of law (other than section 6512(b), 7121,
     or 7122), credit or refund shall be allowed or made to
     the extent attributable to the application of this
     section.

          (B) Res judicata.–-In the case of any election
     under subsection (b) or (c), if a decision of the Tax
     Court in any prior proceeding for the same taxable year
     has become final, such decision shall be conclusive
     except with respect to the qualification of the
     individual for relief which was not an issue in such
     proceeding. The exception contained in the preceding
     sentence shall not apply if the Tax Court determines
     that the individual participated meaningfully in such
     prior proceeding.
                              - 14 -

          (C) Limitation on Tax Court jurisdiction.–-If a
     suit for refund is begun by either individual filing
     the joint return pursuant to section 6532--

                (i) the Tax Court shall lose
           jurisdiction of the individual’s action under
           this section to whatever extent jurisdiction
           is acquired by the district court or the
           United States Court of Federal Claims over
           the taxable years that are the subject of the
           suit for refund; and

                (ii) the court acquiring jurisdiction
           shall have jurisdiction over the petition
           filed under this subsection.

     The 2000 Act struck out subparagraphs (A) and (B) of

original section 6015(e)(3) and enacted new section 6015(g) as

follows:

     (g) Credits and Refunds.–-

          (1) In general.–-Except as provided in paragraphs
     (2) and (3), notwithstanding any other law or rule of
     law (other than section 6511, 6512(b), 7121, or 7122),
     credit or refund shall be allowed or made to the extent
     attributable to the application of this section.

          (2) Res judicata.–-In the case of any election
     under subsection (b) or (c), if a decision of a court
     in any prior proceeding for the same taxable year has
     become final, such decision shall be conclusive except
     with respect to the qualification of the individual for
     relief which was not an issue in such proceeding. The
     exception contained in the preceding sentence shall not
     apply if the court determines that the individual
     participated meaningfully in such prior proceeding.

          (3) Credit and refund not allowed under subsection
     (c).–-No credit or refund shall be allowed as a result
     of an election under subsection (c).
                              - 15 -

IV.   Parties’ Contentions

      Both sides treat section 6015(g)(2) as the controlling

statute; their disputes center on a Treasury regulation

interpreting this statute.

      Petitioner contends that relief under section 6015 was not

available to her in the 1989 case and so, under Treasury

regulations, she is to be treated as not having meaningfully

participated in the 1989 case, whether or not she in fact

meaningfully participated.   Petitioner concludes that, “as a

matter of law she is not barred by the ‘meaningful participation’

rule from asserting innocent spouse status under section 6015 in

this case.”   Petitioner bases her contention that relief under

section 6015 was not available in the 1989 case on the following:

(1) When the record was closed in the 1989 case, the 1998 Act had

not yet been enacted, so section 6015 relief could not have been

claimed; (2) section 6015 as enacted by the 1998 Act required

exhaustion of administrative remedies and, even if petitioner had

applied promptly when the administrative remedies became

available, she would not have been able to petition this Court

“until July 13, 1999–-four months after the Court entered its

decision in the 1989 case”;5 (3) until January 17, 2001, when


      5
       The Court entered the decision on Oct. 2, 2000, after
resolution of a Rule 155 dispute. Petitioner may be referring to
the date of the Court’s initial opinion in the 1989 case.
Petitioner points out that the Court ordinarily does not permit a
                                                   (continued...)
                              - 16 -

proposed regulations were published explaining the allocation

systems “petitioner did not even know whether * * * it would be

worth the effort (not to mention this Court’s resources), to seek

relief”; and (4) because of the 2-year election rule under

section 6015 as enacted by the 1998 Act, petitioner was not

required to seek relief under section 6015 while the 1989 case

was pending.

     Respondent notes that the effective date of the regulation

on which petitioner relies precludes its application to

petitioner’s case,6 but agrees that “the reasoning behind Treas.

Reg. § 1.6015-1(e), that a taxpayer should not be barred from

raising section 6015 if the defense was unavailable because of

the effective date of section 6015, should apply with equal force

here.”7   Respondent contends that petitioner’s motion should

nevertheless be denied because the section 6015 innocent spouse

defense was available to petitioner in the 1989 case, based on

the following:   (1) Reopening the record is within the discretion



     5
      (...continued)
new issue to be raised during the Rule 155 computation
proceedings.
     6
       The parties stipulated that petitioner filed her request
for innocent spouse relief on Nov. 21, 2001. The regulations
apply to requests filed on or after July 18, 2002. Sec. 1.6015-
9, Income Tax Regs.
     7
       To the same effect, see our discussion in Trent v.
Commissioner, T.C. Memo. 2002-285. See also Hopkins v.
Commissioner, 120 T.C. 451 (2003).
                                - 17 -

of the Court and “petitioner chose to forego such opportunities

[to move the Court to reopen the record before decision was

entered in the 1989 case], and should not be allowed to set aside

her decision well after the fact”; (2) although section 6015 as

enacted by the 1998 Act provided for administrative remedies,

“nothing in section 6015 indicates that this was intended to be

the sole means to raise section 6015”; (3) res judicata effects

cannot be avoided “simply because a section 6015 claim was not

economically worth her while prior to the Commissioner

promulgating his proposed regulations under the allocation

rules”; and (4) petitioner’s interpretation of the 2-year

election rule would make section 6015(g)(2) into “irrational

surplusage”, because under that interpretation the res judicata

rule could always be avoided.

     The parties dispute the significance of our opinions in

Noons v. Commissioner, T.C. Memo. 2004-243, and Butler v.

Commissioner, 114 T.C. 276 (2000).       Petitioner states:   “this

court may wish to consider whether Noons (like Butler) is

correctly decided.”

      We agree with respondent’s conclusion that petitioner is not

entitled to summary judgment as a matter of law.

V.   Conclusions

      The Congress chose to provide a statutory rule as to res

judicata in section 6015(e)(3)(B) (under the 1998 Act) and then
                               - 18 -

in section 6015(g)(2) (under the 2000 Act).8    The statutory

language provides that “if a decision of a court * * * has become

final, such decision shall be conclusive”.     Sec. 6015(g)(2)

(emphasis supplied).   An exception is provided, but the statute

states that exception “shall not apply if the court determines

that the individual participated meaningfully in such prior

proceeding.”   Id. (emphasis supplied).

     Both sides focus on the following sentence in sec. 1.6015-

1(e), Income Tax Regs.: “A requesting spouse has not meaningfully

participated in a prior proceeding if, due to the effective date

of section 6015, relief under section 6015 was not available in

that proceeding.”   See supra text at notes 6 and 7.

     The regulation provides a partial definition of the

statutory language.    Petitioner contends this partial definition

helps her cause and she qualifies for its benefits.    Respondent

does not dispute the effectiveness of this partial definition to

help some innocent spouse claimants but contends that this

petitioner does not satisfy the requirements.    Cf. Rauenhorst v.

Commissioner, 119 T.C. 157, 167-173 (2002); Automated Packaging

Systems, Inc. v. Commissioner, 70 T.C. 214, 225 (1978) (Chabot,

J., concurring).




     8
       So that “he that runs may read”, the Congress headed this
provision “Res judicata” in both the 1998 Act and the 2000 Act.
                                   - 19 -

        The parties agree that there is no genuine issue as to any

material fact (Rule 121(b)), but their dispute as to the meaning

of the regulation implies in the instant case a disagreement as

to what are the material facts.       However, we are spared the

necessity in the instant case of exploring the nuances of the

regulation and determining which are the material facts and their

consequences.

        Whatever may be the precise meaning of the regulation

sentence the parties focus on, that sentence is an interpretation

of the meaningful participation language of section 6015(g)(2).

The parties have stipulated for purposes of this motion as

follows:

        11. Petitioner meaningfully participated in the 1989
        case within the meaning of I.R.C. § 6015(g)(2).

We understand this stipulation to be an agreement that, whatever

facts are necessary to a conclusion of meaningful participation

under section 6015(g)(2),9 those are the facts in the instant

case.       (See supra note 4.)   Neither side has asked to be relieved

from the effects of this stipulation.         See Rule 91(e) (second

sentence).       This stipulation is not plainly in conflict with the

undisputed evidence in the record.          Cf. McLaulin v. Commissioner,




        9
       See, e.g., discussion in Huynh v. Commissioner, T.C. Memo.
2006-180, and cases cited therein.
                             - 20 -

115 T.C. 255, 257 n.2 (2000), affd. 276 F.3d 1269 (11th Cir.

2001); Jasionowski v. Commissioner, 66 T.C. 312, 318 (1976).

Petitioner was advised by counsel in the 1989 case and is advised

by counsel in the instant case.   We do not see any special

circumstances that would warrant us, sua sponte, to relieve any

party in the instant case from the effects of the “meaningfully

participated” stipulation.

     Thus, however we resolve the legal questions, the effect of

the stipulation is that petitioner “participated meaningfully” in

the 1989 case, within the meaning of section 6015(g)(2), the

controlling statute.

     In Vetrano v. Commissioner, 116 T.C. at 278, we described

the effect of section 6015(g)(2)’s general rule as follows:

     The above provision prescribes the effect that a final
     court decision for a particular taxable year will have
     on a subsequent election by the taxpayer under
     subsection (b) or (c) of section 6015 for the same
     taxable year. By its terms, an individual cannot make
     an election under section 6015(b) or (c) for any
     taxable year that is the subject of a final court
     decision, unless the individual’s qualification for
     relief under section 6015(b) or (c) was not an issue in
     the prior court proceeding and the individual did not
     participate meaningfully in the prior proceeding. See
     sec. 6015(g)(2). Stated differently, an individual who
     participated meaningfully in a court proceeding is
     precluded from electing relief under section 6015(b) or
     (c) for the same taxable year after the decision of the
     court becomes final, whether or not the individual’s
     qualification for relief under section 6015(b) or (c)
     was an issue in the prior proceeding. See sec.
     6015(g)(2).
                             - 21 -

     It follows that the parties’ stipulation forecloses

petitioner from showing (within the confines of her motion) that

she is entitled to the benefit of the statutory exception; it

then follows that petitioner is not entitled to judgment as a

matter of law on her partial summary judgment motion.



                                        An appropriate order will

                                   be issued denying petitioner’s

                                   motion for partial summary

                                   judgment.
