                  T.C. Summary Opinion 2009-147



                     UNITED STATES TAX COURT



                 MICHAEL JAY GARCIA, Petitioner,
                 AND PAMELA G. BUZBY, Intervenor
                                v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24587-07S.            Filed September 22, 2009.



     Michael Jay Garcia, pro se.

     Pamela G. Buzby, pro se.

     Susan M. Fenner, for respondent.



     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.   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
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case.     Unless otherwise indicated, all section references are to

the Internal Revenue Code, and all Rule references are to the Tax

Court Rules of Practice and Procedure.

     Petitioner contests the denial of relief from joint and

several liability under section 6015(f) for 1999 and 2000.

Intervenor, who was relieved of liability for the additions to

tax under sections 6651(a)(2) and 6654(a), has paid the

underlying tax liabilities.     Respondent and petitioner now agree

that petitioner is entitled to relief under section 6015(f) from

liability for the additions to tax.      Intervenor opposes

petitioner’s relief from liability for the additions to tax.

         The issue for decision is whether petitioner is entitled to

relief from liability for the additions to tax under section

6015(f).

                              Background

     The stipulations of fact and the exhibits received into

evidence are incorporated herein by reference.      At the time the

petition was filed, petitioner resided in Texas.

     Petitioner and intervenor filed their Federal income tax

return for 1999 showing a tax due of $7,758.1     Petitioner’s

business was “Land Maintenance” and intervenor was a “Management

Consultant”.     The return included a Schedule C, Profit or Loss



     1
      Petitioner and intervenor were married on Mar. 24, 2000,
and divorced on Mar. 11, 2002.
                                - 3 -

From Business, for petitioner showing a loss of $5,083 and a

Schedule C for intervenor showing a net profit of $39,133.

     The return for 2000 showed a tax due of $2,869.

Petitioner’s lawn maintenance Schedule C reported a net loss of

$1,787.   Petitioner’s “delivery service” Schedule C reported a

net profit of $774.    Intervenor reported Schedule C “records

consulting” net income of $12,086.      The return also reported

wages of $38,751.

     Intervenor filed a request for relief from joint liability.

On the Form 12510, Questionnaire for Requesting Spouse, that

intervenor provided to respondent, she stated that she prepared

the tax returns and that both her income and petitioner’s were

deposited into their joint bank accounts.      According to

intervenor, all bills were paid from the joint accounts, to which

she had full access.    Intervenor, who attended college for 2

years, stated that she also balanced the checkbook.

     Petitioner also filed a request for relief from joint

liability.   Petitioner was notified in a letter dated July 27,

2007, that his request for relief from joint liability was denied

because “You did not respond to our request for additional

information.”   After the petition and the answer were filed,

however, respondent moved for a continuance in order to further

consider petitioner’s request for relief.      The Court granted the
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motion, and respondent’s Appeals Office, after review, granted

petitioner relief from joint and several liability.

                             Discussion

     Generally, married taxpayers may elect to file a joint

Federal income tax return.   Sec. 6013(a).   The determination of

the marital status of taxpayers is made as of the close of the

taxable year.   Sec. 6013(d)(1)(A).    Because petitioners were not

married until March 2000, they were not as of the close of 1999

husband and wife and were not entitled to file a joint return.

Petitioner, a single person incurring a net loss for the year,

was not required to file a Federal income tax return for 1999.

See sec. 6012(a).

     Petitioner is not liable for the additions to tax under

sections 6651(a)(2) and 6654(a) for 1999 because the return was

not a valid joint return on which he was either jointly or

severally liable.

     Where, however, a husband and wife have made a valid

election to file a joint Federal income tax return, each spouse

is jointly and severally liable for the entire tax due.    Sec.

6013(d)(3).   A spouse may seek relief from joint and several

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

allocation of liability for the item giving rise to the

deficiency under section 6015(c).
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     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),2 section 6015(e) gives jurisdiction

to the Court “to determine the appropriate relief available to

the individual under this section”.   The Court will apply a de

novo scope and standard of review.    Porter v. Commissioner, 132

T.C. ___ (2009).

     Except as otherwise provided in section 6015, the taxpayer

bears the burden of proving entitlement to relief.   Rule 142(a);

Alt v. Commissioner, 119 T.C. 306, 311 (2002), affd. 101 Fed.

Appx. 34 (6th Cir. 2004).

     Where relief is not available under section 6015(b) or (c),

section 6015(f) grants the Commissioner discretion to relieve an

individual from joint liability if, taking into account all the

facts and circumstances, it is inequitable to hold the individual

liable for any unpaid tax or deficiency.

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

prescribed guidelines in Rev. Proc. 2003-61, 2003-2 C.B. 296, to

be used in determining whether an individual qualifies for relief



     2
      The Tax Relief and Health Care Act of 2006, Pub. L. 109-
432, div. C, sec. 408(a), 120 Stat. 3061, amended sec. 6015(e)(1)
to provide that this Court may review the Commissioner’s denial
of relief under sec. 6015 in any case where an individual
requested relief under sec. 6015(f). The amendment applies “with
respect to liability for taxes arising or remaining unpaid on or
after the date of the enactment of this Act [Dec. 20, 2006].”
Id. sec. 408(c), 120 Stat. 3062.
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under that section.3   Rev. Proc. 2003-61, sec. 4.01, 2003-2 C.B.

at 297, sets forth seven threshold conditions that must be

satisfied before the Commissioner will consider a request for

equitable relief under section 6015(f).   Respondent determined

that petitioner satisfied all of the threshold conditions.

     Where the threshold conditions have been met, Rev. Proc.

2003-61, sec. 4.02, 2003-2 C.B. at 298, states that relief will

ordinarily be granted with respect to underpayments of tax if all

of the three so-called tier 1 factors are satisfied.   Respondent

determined that petitioner failed to satisfy all of the tier 1

factors.   See id.

     Where the requesting spouse has satisfied the threshold

conditions of section 4.01 but does not qualify for relief under

section 4.02, a determination may nevertheless be made under

section 4.03 to grant relief.   Rev. Proc. 2003-61, sec. 4.03,

2003-2 C.B. at 298, contains a nonexhaustive list of factors, so-

called tier 2 factors, that the IRS will consider and weigh when

determining whether to grant equitable relief under section

6015(f).   Respondent, after considering the tier 2 factors, found

that those favoring relief outweighed those disfavoring relief.


     3
      Rev. Proc. 2003-61, 2003-2 C.B. 296, supersedes Rev. Proc.
2000-15, 2000-1 C.B. 447. The guidelines set forth in Rev. Proc.
2003-61, supra, are effective for requests for relief filed on or
after Nov. 1, 2003, and for requests for relief pending as of
Nov. 1, 2003, for which no preliminary determination letter has
been issued as of Nov. 1, 2003. Id. sec. 7, 2003-2 C.B. at 299.
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     The factual issues to which intervenor’s argument,

testimony, and other evidence were directed--whether petitioner

worked in 2000,4 used their ATM/check card, and signed the

returns--do not bear directly on any of the factors respondent

considered in making his decision to grant relief to petitioner.

     The Court has reviewed the factors on which respondent based

his determination and comes to the same conclusion as does

respondent.   Petitioner is entitled to relief under section

6015(f) from the additions to tax under sections 6651(a)(2) and

6654(a) for 2000.

     To reflect the foregoing,


                                              Decision will be entered

                                         for petitioner.




     4
      Intervenor, however, prepared the return and testified that
the income shown on the Forms 1099-MISC, Miscellaneous Income,
was reported on the 2000 Federal income tax return. She presses
this point, apparently, to suggest that petitioner made a
misstatement on his request for relief from joint liability.
