                  T.C. Summary Opinion 2010-113



                     UNITED STATES TAX COURT



               CARON WILMA RIGANTI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23757-07S.              Filed August 11, 2010.



     Caron Wilma Riganti, pro se.

     Steven W. LaBounty, for respondent.



     CARLUZZO, Special Trial Judge:   This section 6015(e)1 case

was heard pursuant to the provisions of section 7463.    Pursuant

to section 7463(b), the decision to be entered is not reviewable




     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, in effect for the
relevant period. Rule references are to the Tax Court Rules of
Practice and Procedure.
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by any other court, and this opinion shall not be treated as

precedent for any other case.

     In a final notice of determination dated July 19, 2007,

respondent denied petitioner’s claim for section 6015 relief with

respect to the joint and several liability arising from the 2004

and 2005 joint Federal income tax returns filed by petitioner and

Marc H. Riganti (petitioner’s former spouse).    Because the tax

liability for each year results from an underpayment of the tax

shown on the joint return, we agree with respondent that she does

not qualify for relief under section 6015(b) or (c) for either

year.   That being so, we consider, de novo, her entitlement to

equitable relief under section 6015(f).    See Porter v.

Commissioner, 132 T.C. 203 (2009).

                              Background

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

At the time the petition was filed, petitioner resided in

Missouri.

     Petitioner and her former spouse married each other in June

1986.   They separated in September 2005 and were divorced in

October 2006.   They have four children.

     In connection with their divorce, in October 2006 petitioner

and her former spouse entered into a “Marital Separation

Agreement” (the agreement).    Various unpaid marital debts are
                               - 3 -

noted and allocated to one or the other of them in the agreement.

For the most part, the marital debts are split equally between

petitioner and her former spouse, who routinely failed to pay his

“fair share”.   This equal split also applies to the net proceeds

that were expected to result from the future sale of the marital

residence.   The agreement, however, does not address the unpaid

Federal income tax liabilities that existed at the time.

     Petitioner was employed during both years in issue.     For

2004 her wages totaled $43,233, from which Federal income tax

withholdings totaled $3,544.   For 2005 her wages totaled $59,482,

from which Federal income tax withholdings totaled $7,786.

     While married to each other petitioner and her former spouse

routinely filed joint Federal income tax returns.     Petitioner

relied upon her former spouse to prepare and to file the joint

return for any given year.   As with prior years, for 2004 and

2005 petitioner provided her tax information to her former spouse

so that he could prepare and file the income tax returns for

those years as well.   As in some other years, petitioner neither

reviewed nor signed the 2004 or 2005 joint return.2


     2
      Respondent considered and rejected petitioner’s suggestion
that neither the 2004 nor the 2005 return should be treated as
her return. We agree with respondent, and under the
circumstances see no need for any further discussion on the
point. See, e.g., Estate of Campbell v. Commissioner, 56 T.C. 1,
12-13 (1971); Heim v. Commissioner, 27 T.C. 270, 273-274 (1956),
affd. 251 F.2d 44 (8th Cir. 1958); Howell v. Commissioner, 10
T.C. 859 (1948), affd. per curiam 175 F.2d 240 (6th Cir. 1949);
                                                   (continued...)
                                - 4 -

     The 2004 joint return, filed October 17, 2005, shows a

$13,739 income tax liability, of which $4,833 was not paid with

the return.    The 2005 joint return, filed June 8, 2006, shows a

$20,114 income tax liability, of which $2,742 was not paid with

the return.

     As best we can determine from the record, petitioner became

aware of the 2004 and 2005 unpaid income tax liabilities when she

received notice that expected Federal income tax refunds from

2002 and/or 2003 would be applied to 2004 and/or 2005

liabilities.

     In a Form 8857, Request for Innocent Spouse Relief, and Form

12510, Questionnaire for Requesting Spouse, both timely submitted

to respondent in November 2006, petitioner sought relief from the

unpaid portions of the outstanding income tax liabilities for

2004 and 2005.   In the above-referenced final notice, respondent

denied that relief because, among other reasons, petitioner:

(1) Failed to establish a reasonable belief the tax liabilities

reported on the returns would be paid; and (2) failed to

establish that she would suffer economic hardship if not relieved

of the tax liabilities.




     2
      (...continued)
Magee v. Commissioner, T.C. Memo. 2005-263; Boyle v.
Commissioner, T.C. Memo. 1994-294; Evans v. Commissioner, T.C.
Memo. 1982-700; sec. 1.6013-1(a)(2), Income Tax Regs.
                                 - 5 -

                             Discussion

     In general, spouses “may make a single return jointly of

income taxes”.   Sec. 6013(a).   Like most decisions, an

individual’s decision to file a joint return with the

individual’s spouse has consequences.     One consequence to the

individual is the assumption of an income tax liability for

income not otherwise attributable to the individual.    This is so

because if for any given year a joint return is made by spouses,

then with respect to that year “the tax shall be computed on the

aggregate income and the liability with respect to the tax shall

be joint and several.”    Sec. 6013(d)(3); see sec. 1.6013-4(b),

Income Tax Regs.   “[J]oint and several liability” for the tax

shown on a return means that although the tax may be collected

only once, each spouse is entirely responsible for the payment of

the unpaid portions of the tax without apportionment between

them.   Cluck v. Commissioner, 105 T.C. 324, 326 n.4 (1995); Pesch

v. Commissioner, 78 T.C. 100 (1982); Grubich v. Commissioner,

T.C. Memo. 1993-194.   In turn, this means that the Commissioner

may, as he sees fit, collect the tax from either one.      Cf. Pesch

v. Commissioner, supra.

     Subject to various conditions and in a variety of ways set

forth in section 6015, an individual who has made a joint return

with his or her spouse for a year may seek relief from the joint

and several liability arising from that joint return.      Except as
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otherwise provided in section 6015, the taxpayer bears the burden

of proving entitlement to the relief contemplated by that

section.     Rule 142(a); Alt v. Commissioner, 119 T.C. 306, 311

(2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004).

     If, as in this case, a taxpayer does not qualify for relief

under section 6015(b) or (c) because the underlying income tax

liability is attributable to an underpayment of tax, then relief

under section 6015 is limited to that provided in section

6015(f).     That section provides for relief if, taking into

account all the facts and circumstances, it would be inequitable

to hold the taxpayer liable for any unpaid tax or deficiency.

Sec. 6015(f)(1).

     The Commissioner has issued revenue procedures listing the

factors normally considered in determining whether relief should

be granted under section 6015(f).     Rev. Proc. 2003-61, 2003-2

C.B. 296, modifying and superseding Rev. Proc. 2000-15, 2000-1

C.B. 447.3    Respondent has taken those factors into account.

Furthermore, the application of those factors supports

respondent’s denial of relief, and petitioner does not suggest

otherwise.




     3
      The guidelines set forth in Rev. Proc. 2003-61, 2003-2 C.B.
296, are effective for requests for relief filed, as in this
case, on or after Nov. 1, 2003. Id. sec. 7, 2003-2 C.B. at 299.
                                - 7 -

     Petitioner’s request for section 6015 relief was prompted by

her belief, triggered by some forced collection action, that she

would be required to pay the full amounts of the unpaid portions

of the 2004 and 2005 income tax liabilities arising from the

joint return filed for each year.   As petitioner views the

matter, the 2004 and 2005 income tax liabilities should be

treated in a manner consistent with the other marital debts taken

into account in the agreement; that is, she and her former spouse

should each be responsible for one-half of the tax liability for

each year.   She is not so much seeking relief from those

liabilities as she is seeking some assurance that her former

spouse will be required to pay what she considers to be his fair

share of those liabilities.    Because petitioner’s former spouse

has otherwise failed to live up to other of his financial

obligations, we appreciate petitioner’s concern that she might be

required to pay the full amounts of the outstanding 2004 and 2005

tax liabilities.   Her concern, of course, is completely

consistent with the concept of joint and several liability.

     We expect it is of no consolation to her to point out that

her former spouse remains equally responsible for payment of the

outstanding tax liabilities.   Nevertheless and simply put, the

type of relief she seeks, perhaps available through the local

court having jurisdiction over her divorce from her former

spouse, is outside that contemplated under section 6015.
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To reflect the foregoing,


                                    Decision will be entered

                            for respondent.
