                          T.C. Summary Opinion 2012-15



                         UNITED STATES TAX COURT



               DAVID CHARLES LADEHOFF, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 16814-10S.                        Filed February 27, 2012.



      David Charles Ladehoff, pro se.

      Robert M. Romashko, for respondent.



                              SUMMARY OPINION


      DEAN, Special Trial Judge: This case was heard pursuant to the provisions

of section 7463 of the Internal Revenue Code in effect when the petition was filed.
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Pursuant to section 7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent for any other case.

Unless otherwise indicated, subsequent section references are to the Internal

Revenue Code as amended, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

      This case arises from petitioner’s request for relief from joint and several

liability under section 6015 with respect to an understatement of Federal income tax

for 2008. Respondent denied petitioner relief from joint and several liability under

section 6015(b), (c), and (f). The issue for decision is whether petitioner is entitled

to relief under section 6015(b), (c), or (f) for 2008.

                                      Background

      Some of the facts have been stipulated and are so found. The stipulation of

facts and the attached exhibits are incorporated herein by reference. Petitioner

resided in Illinois when he filed his petition.

      Petitioner and his ex-wife were married in December 1997. The couple filed

a joint Federal income tax return for 2008 on April 8, 2009. Petitioner prepared the

return using the documents his ex-wife gave him. On Schedule H, Household

Employment Taxes, petitioner multiplied the total wages paid by half of the

percentages required to determine the Social Security and Medicare taxes
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owed on the wages paid. The return reported a balance due of $1,3231 that was

remitted with the return. Petitioner and his ex-wife divorced in January 2009.

       Respondent reviewed petitioner’s return and discovered that there were

mathematical errors on Schedule H and that the adjusted gross income phaseout had

not been applied to the child tax credit (CTC). Respondent assessed a deficiency of

$1,097.

       Petitioner timely filed Form 8857, Request for Innocent Spouse Relief.

Respondent proposed to deny petitioner relief under section 6015(b), (c), and (f)

“because relief is not allowed on tax you owe on your own income or deductions.”

Petitioner filed Form 12509, Statement of Disagreement, in reply to respondent’s

preliminary denial of relief. Respondent then sent petitioner a final Appeals

determination denying him relief under section 6015(b), (c), and (f). No reason is

stated in the final determination for the denial of relief.

                                        Discussion

       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 year. Sec. 6013(d)(3); Butler v. Commissioner,

114 T.C. 276, 282 (2000). In certain circumstances, however, a spouse who has



       1
           All amounts are rounded to the nearest dollar.
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filed a joint return may seek relief from joint and several liability under procedures

set forth in section 6015. Sec. 6015(a).

      Under section 6015(a) a spouse may seek relief from joint and several

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

provisions set forth in section 6015(c). If a taxpayer does not qualify for relief

under either section 6015(b) or (c), the taxpayer may seek equitable relief under

section 6015(f).

      Where an individual elects to have section 6015(b) or (c) apply, or in the case

of an individual who requests equitable relief under section 6015(f), section 6015(e)

gives jurisdiction to the Court “to determine the appropriate relief available to the

individual under this section”.

I.    Burden of Proof

      Except as otherwise provided in section 6015, the taxpayer bears the burden

of proving that he or she is entitled to section 6015 relief. Rule 142(a); Alt v.

Commissioner, 119 T.C. 306, 311 (2002), aff’d, 101 Fed. Appx. 34 (6th Cir. 2004).

Under subsections (b) and (c) a taxpayer need only persuade the Court by a

preponderance of the evidence. Stergios v. Commissioner, T.C. Memo. 2009-15;

see also McClelland v. Commissioner, T.C. Memo. 2005-121.
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II.   Relief Under Section 6015(b)

      Section 6015(b) provides relief from joint and several liability for tax

(including interest, penalties, and other amounts) to the extent that such liability is

attributable to an understatement of tax. To be eligible for relief, the requesting

spouse must satisfy all five elements of section 6015(b)(1). See also Alt v.

Commissioner, 119 T.C. at 313 (requirements for section 6015(b) relief are

conjunctive).

      One of the five elements is that the understatement of tax on the return is

attributable to erroneous items of the nonrequesting spouse. Sec. 6015(b)(1)(B). If

the understatement is attributable to an erroneous item of the requesting spouse or to

both the requesting and the nonrequesting spouse, the requesting spouse is not

entitled to relief under section 6015(b). See, e.g., Bartak v. Commissioner, T.C.

Memo. 2004-83, aff'd, 158 Fed. Appx. 43 (9th Cir. 2005); Ellison v. Commissioner,

T.C. Memo. 2004-57; Doyel v. Commissioner, T.C. Memo. 2004-35.

      Petitioner prepared the couple’s 2008 return. He argues that the return is

fraudulent and that the erroneous items are attributable to his ex-wife. Petitioner

testified that his ex-wife falsified employment records of family members who

provided child care services for the couple’s children. He provided no evidence to
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corroborate his testimony. Even if the Court accepts petitioner’s testimony that his

ex-wife falsified records, her actions would not explain why he used only half of the

applicable percentages to calculate the Schedule H taxes. The erroneous items are

attributable to either petitioner or both petitioner and his ex-wife.

       Another element under section 6015(b) is knowledge or reason to know of

the understatement. Sec. 6015(b)(1)(C). Petitioner prepared the couple’s return

using documents he says are fraudulent and did not use the correct percentages to

calculate the tax owed on Schedule H. Petitioner cannot claim that he did not have

knowledge or reason to know that there was an understatement on the return.

       The understatement of tax on petitioner’s return is attributable to

mathematical errors on Schedule H and an incorrectly calculated CTC. These

erroneous items are attributable to either petitioner or petitioner and his ex-wife.

Additionally, they are errors petitioner made when he prepared the return.

Petitioner does not satisfy all five elements under section 6015(b)(1). Therefore,

petitioner is not entitled to relief under section 6015(b).

III.   Relief Under Section 6015(c)

       Section 6015(c) allows proportionate tax relief through allocation of the

deficiency between individuals who filed a joint return and are no longer married,
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are legally separated, or have been living apart for a 12-month period. Petitioner

and his ex-wife were divorced in January 2009.

      Relief, however, will not be available to a requesting spouse who had actual

knowledge, at the time of signing the return, of any item giving rise to a deficiency.

See sec. 6015(c)(3)(C).

      Petitioner prepared the couple’s return and made mathematical errors on

Schedule H and in computing the couple’s CTC. As discussed above, petitioner had

actual knowledge of both items that gave rise to the deficiency. Therefore,

petitioner is not entitled to relief under section 6015(c).

IV.   Equitable Relief Under Section 6015(f)

      A taxpayer is entitled to relief under section 6015(f) if, taking into account all

of the facts and circumstances, it would be inequitable to hold the taxpayer liable for

any unpaid tax or deficiency. Sec. 6015(f)(1). Both the scope and standard of our

review in cases requesting equitable relief from joint and several income tax liability

are de novo. Porter v. Commissioner, 132 T.C. 203 (2009).

      Rev. Proc. 2003-61, sec. 4.01(1)-(7), 2003-2 C.B. 296, 297, sets out seven

threshold conditions that a requesting spouse must meet before the Commissioner

will consider a request for relief under subsection (f). We employ these conditions

when reviewing the Commissioner’s denial of relief. See Washington v.
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Commissioner, 120 T.C. 137, 147-152 (2003); see also Schultz v. Commissioner,

T.C. Memo. 2010-233.

      One condition is that the income tax liability from which the requesting

spouse seeks relief be attributable to an item of the nonrequesting spouse. Rev.

Proc. 2003-61, sec. 4.01(7). One exception to this condition is that the requesting

spouse was subject to abuse not amounting to duress and did not challenge the

treatment of the items on the return for fear of retaliation from the nonrequesting

spouse. Id., 2003-2 C.B. at 298.

      Petitioner testified that he was physically and emotionally abused by his ex-

wife throughout the marriage. Evidence of two police reports documenting

allegations of domestic battery were entered into the record. The first incident

occurred on July 4, 2008, and the second on May 14, 2009. The first report states

that petitioner refused to file a domestic battery complaint. The second incident

occurred after the return for the year in issue was filed. Petitioner was listed as the

victim in both reports. Petitioner’s ex-wife was listed as the “other person

involved” in both reports--in the first report under the code for spouse and in the

second report under the code for second victim. No allegations of abuse were made

during the couple’s divorce proceedings. Petitioner’s evidence of abuse does not

rise to the level of abuse that would keep him from challenging the treatment of the
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items on the return for fear of his ex-wife’s retaliation. Cf. Thomassen v.

Commissioner, T.C. Memo. 2011-88.

      The income tax deficiency from which petitioner seeks relief is attributable to

mathematical errors he made when he prepared the couple’s joint return. None of

the exceptions to condition (7) apply to petitioner. See Rev. Proc. 2003-61, sec.

4.01(7)(a), (b), (c), and (d). Petitioner does not meet all of the threshold conditions

for relief under Rev. Proc. 2003-61, sec. 4.01. Therefore, petitioner is not entitled

to relief under section 6015(f).

V.    Conclusion

      After review of all of the evidence, the Court concludes that petitioner is not

entitled to relief under section 6015(b), (c), or (f) for 2008.

      We have considered all of petitioner’s arguments, and, to the extent not

addressed herein, we conclude that they are moot, irrelevant, or without merit.

      To reflect the foregoing,


                                                              Decision will be entered

                                                       for respondent.
