                         T.C. Memo. 2009-140



                       UNITED STATES TAX COURT



                     JAMES A. HAIGH, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16461-07.                Filed June 15, 2009.



     James A. Haigh, pro se.

     Henry N. Carriger, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined a deficiency of

$1,473 in petitioner’s Federal income tax (tax) for his taxable

year 2004.
                                 - 2 -

        The issues for decision for petitioner’s taxable year 2004

are:1

        (1) Is petitioner entitled to married filing separately

filing status?     We hold that he is not.

        (2) Is petitioner entitled to certain itemized deductions in

excess of those claimed in the tax return that he filed with

Shirley R. Haigh?     We hold that he is not.

        (3) Is the distribution that Shirley R. Haigh received

during 2004 from her individual retirement account subject to the

additional tax under section 72(t)2 that respondent determined?

We hold that it is.

        (4) Does petitioner have total and taxable Social Security

benefits in the respective amounts that respondent determined?

We hold that he does.

        (5) Is petitioner entitled to relief under section 6015?   We

hold that he is not.




        1
      In addition to the issues for decision for petitioner’s
taxable year 2004 that are listed below in the text, there are
other questions relating to certain determinations in the notice
for that year that are computational in that their resolution
flows automatically from our resolution of certain of the issues
that we address herein.
        2
      All section references are to the Internal Revenue Code in
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 3 -

                         FINDINGS OF FACT

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

     At the time petitioner filed the petition in this case, he

resided in Iowa.

     Petitioner is a licensed professional engineer who at times

not disclosed by the record specialized in consulting on issues

relating to environmental engineering and environmental law and

regulation.   At times not disclosed by the record, petitioner

also spent a total of five years as a licensed financial advisor

who performed consulting work for certain small business develop-

ment corporations and their respective owners.    In that role,

petitioner aided minorities and women who wanted to establish

small businesses by, inter alia, helping them (1) create the

entities through which to conduct their respective businesses,

(2) obtain loans, (3) establish accounting systems, including

cost accounting systems, and (4) install appropriate accounting

and tax computer software.    Petitioner did not prepare tax

returns for his clients as part of the services that he performed

as a licensed financial advisor.

     In 1984, petitioner was involved in an automobile accident

and suffered a broken neck.    Beginning around 2000 petitioner

became a patient at a pain clinic to which he was referred by

certain staff at the Mayo Clinic.    He has been taking certain
                               - 4 -

prescription medications in order to alleviate the pain associ-

ated with the neck injury that he suffered in 1984.

     On November 27, 2004, petitioner married Shirley R. Haigh

(Ms. Haigh).   (We shall refer to petitioner and Ms. Haigh as the

Haighs.)   Before their marriage, petitioner and Ms. Haigh exe-

cuted a prenuptial agreement (prenuptial agreement) that re-

quired, inter alia, that they file joint tax returns during their

marriage unless it was financially advantageous, and both parties

agreed, to file separate tax returns.

     In 2004, before petitioner and Ms. Haigh married and before

she was 59-1/2 years old, Ms. Haigh received a distribution of

$13,977.12 (IRA distribution) from her individual retirement

account.   The Hartford Life Insurance Co. (Hartford) reported

that IRA distribution in Form 1099-R, Distributions From Pen-

sions, Annuities, Retirement or Profit-Sharing Plans, IRAs,

Insurance Contracts, etc. (Ms. Haigh’s Form 1099-R), that it

issued to Ms. Haigh for her taxable year 2004.

     During 2004, petitioner received Social Security benefits

totaling $18,986.20 from the Social Security Administration

(SSA).   The SSA reported that total amount of benefits in Form

SSA-1099, Social Security Benefit Statement (Form SSA-1099), that

it issued to petitioner for his taxable year 2004.

     Petitioner prepared his personal and business tax returns,

including Form 1040, U.S. Individual Income Tax Return, that he
                               - 5 -

prepared for Ms. Haigh and himself and that the Haighs timely

filed for their taxable year 2004 (2004 joint return).   Before

petitioner prepared that return, Ms. Haigh gave him Ms. Haigh’s

Form 1099-R in which Hartford reported the $13,977.12 IRA distri-

bution that she received during 2004.   When petitioner was

preparing the 2004 joint return, he knew that Ms. Haigh had

received the IRA distribution in 2004 before she was 59-1/2 years

old and that that so-called early distribution was subject to an

additional tax.

     In the 2004 joint return, the Haighs (1) included in income,

inter alia, Ms. Haigh’s $13,977.12 IRA distribution, (2) showed

total and taxable Social Security benefits of $18,437 and

$2,788.13, respectively, adjusted gross income of $54,972.01,

taxable income of $29,867.61, and total tax of $3,766, and

(3) claimed total tax payments of $5,910.40 and a refund due of

$2,144.40.   In the 2004 joint return, the Haighs did not report

any additional tax imposed by section 72(t) (10-percent addi-

tional tax) with respect to Ms. Haigh’s IRA distribution.3

     On March 21, 2005, respondent issued Notice CP-16 to the

Haighs.4   In that notice, respondent informed the Haighs that


     3
      Line 59 of the 2004 joint return is titled “Additional tax
on IRAs, other qualified retirement plans, etc.”
     4
      Internal Revenue Manual pt. 3.14.1.6.12.6 and
3.14.1.6.12.6.5 (Jan. 1, 2009) provides that Notice CP-16 is used
to notify a taxpayer who has filed a tax return in which the
                                                    (continued...)
                                 - 6 -

they had incorrectly calculated the amount of taxable Social

Security benefits shown in the 2004 joint return (petitioner’s

computational error) and that respondent had corrected that

error.     Respondent’s correction of petitioner’s computational

error resulted in respective increases of (1) $12,883 in the

adjusted gross income, (2) $13,852 in the taxable income, and

(3) $2,078 in the total tax that the Haighs showed in that

return.     As a result of the adjustments in Notice CP-16, respon-

dent reduced the refund claimed in the 2004 joint return by

$2,078 to $66.40 and applied that refund to an outstanding tax

liability for the taxable year 2003.5

     On January 29, 2007, respondent issued Notice CP-2000 to the

Haighs.6    In that notice, respondent proposed the following three

adjustments to the Haighs’ 2004 joint return:     (1) a 10-percent

additional tax of $1,398 with respect to the IRA distribution

that Ms. Haigh received in 2004, (2) an increase of $549 to



     4
      (...continued)
taxpayer claimed a refund that (1) the taxpayer made one or more
mathematical errors in that return, (2) the Commissioner of
Internal Revenue (Commissioner) corrected those mathematical
errors, and (3) the Commissioner applied any corrected refund
amount to offset other liabilities of the taxpayer.
     5
      Notice CP-16 does not specify whether the tax liability for
the taxable year 2003 to which respondent applied the refund of
$66.40 was attributable to petitioner or to Ms. Haigh, who were
not married to each other during that year.
     6
      Notice CP-2000 is used to notify taxpayers of proposed
adjustments to their tax liabilities.
                                - 7 -

petitioner’s total Social Security benefits,7 and (3) an increase

of $467 to petitioner’s taxable Social Security benefits.8

     At no time before February 25, 2007, were petitioner and Ms.

Haigh divorced or legally separated.    On February 24, 2007,

petitioner and Ms. Haigh began living apart.    On or about March

6, 2007, Ms. Haigh initiated a proceeding for divorce in the Iowa

District Court, Woodbury County.    That proceeding was still

pending at the time of the trial in this case.

     On February 24, 2007, petitioner sent a letter to respondent

(petitioner’s February 24, 2007 letter) to which he attached

completed Form 12507, Innocent Spouse Statement (petitioner’s

Form 12507).    In petitioner’s Form 12507, petitioner indicated

that when he was preparing the 2004 joint return Ms. Haigh showed

him a document indicating that she had paid a penalty on her IRA

distribution.    In that form, petitioner also indicated that when

he questioned Ms. Haigh about that document she “refused to


     7
      The increase of $549 to petitioner’s total Social Security
benefits is the difference between (1) $18,986, the amount of
total Social Security benefits that the SSA reported in Form SSA-
1099 that it issued to petitioner for petitioner’s taxable year
2004, and (2) $18,437, the amount of total Social Security
benefits that the Haighs reported in the 2004 joint return.
     8
      The increase of $467 to petitioner’s taxable Social Secu-
rity benefits is the difference between (1) $16,138, the portion
of petitioner’s total Social Security benefits of $18,986 that
respondent proposed is taxable in Notice CP-2000 issued to the
Haighs on Jan. 29, 2007, and (2) $15,671, the portion of peti-
tioner’s total Social Security benefits of $18,437 reported in
the 2004 joint return that respondent calculated was taxable in
Notice CP-16 issued to the Haighs on Mar. 21, 2005.
                                   - 8 -

contact the plan to obtain a statement showing how this amount

[the penalty] was allocated.”       In both petitioner’s February 24,

2007 letter and petitioner’s Form 12507, petitioner requested

that respondent permit him to file an amended tax return for his

taxable year 2004 in order to elect married filing separately

filing status (married filing separately status).

       Respondent treated the receipt of petitioner’s February 24,

2007 letter and petitioner’s Form 12507 as the filing by peti-

tioner of Form 8857, Request for Innocent Spouse Relief, and

began an investigation to determine whether he was eligible for

relief under section 6015.

       On April 16, 2007, respondent issued to the Haighs a notice

of deficiency for their taxable year 2004 (2004 notice).      In the

2004 notice, respondent determined that the Haighs are subject to

the 10-percent additional tax with respect to the IRA distribu-

tion that Ms. Haigh received in 2004 before she was 59-1/2 years

old.       Respondent also determined that petitioner received total

and taxable Social Security benefits of $18,9869 and $16,138,

respectively.10


       9
      In the 2004 notice issued on Apr. 16, 2007, and in Notice
CP-2000 issued on Jan. 29, 2007, respondent rounded to the
nearest dollar the total amount of Social Security benefits that
respondent determined petitioner received during 2004. For
convenience, we generally shall do the same.
       10
      Respondent’s determinations in the 2004 notice are identi-
cal to the adjustments that respondent proposed in Notice CP-2000
                                                   (continued...)
                                 - 9 -

     On May 22, 2007, Ms. Haigh sent to respondent completed Form

12508, Questionnaire for Non-Requesting Spouse (Ms. Haigh’s Form

12508).   In that form, Ms. Haigh indicated that petitioner had

prepared the 2004 joint return and that she gave him her “W-2s

and other documentation” before petitioner prepared that return.

Ms. Haigh also indicated in Ms. Haigh’s Form 12508 that “He

[petitioner] asked about the withdrawal [the IRA distribution].

I gave him the statement from the bank.     I told him I paid a

penalty but did not know for sure about a tax consequence.”

     Respondent assigned an examiner (respondent’s examiner) to

review petitioner’s request for relief under section 6015.     After

reviewing that request, respondent’s examiner prepared a

workpaper dated June 8, 2007 (examiner’s workpaper).     The exam-

iner’s workpaper stated, inter alia:     “Rs [requesting spouse,

here petitioner] had actual knowledge of the income [the IRA

distribution], he prepared the return, failed his duty of in-

quiry, no hardship or abuse, equitable to hold liable”.

     Respondent’s examiner denied petitioner’s request for relief

under section 6015(b) and (c).    The examiner’s workpaper stated,

inter alia:




     10
      (...continued)
issued on Jan. 29, 2007.
                                - 10 -

     Taxpayers are currently divorced, widowed, legally
     separated, or they lived apart prior to the claim

        *        *       *        *      *       *        *

     Solely attributable to the NRS [nonrequesting spouse]
     Erroneous items: 10% penalty on early pension
                       withdrawal

        *        *       *        *      *       *        *

     RS had full actual knowledge
     Explanation: income was reported on return, did not
                   claim the 10% penalty on back of 1040,
                   line 59 [Reproduced literally.]

     Respondent’s examiner also denied petitioner’s request for

relief under section 6015(f).    The examiner’s workpaper stated,

inter alia:

     Tier II factors:
     Taxpayers are currently divorced, widowed,           For
     legally separated, or they had been members
     of separate households prior to the claim for
     at least 12 consecutive months
     No economic hardship                            Against
     Explanation: no info given, he rec’s over
                   $1,000 a month in SS [Social Security]
     No marital abuse
     No poor mental or physical health
     No legal obligation established

            Knowledge:
            Background:
              RS - unknown                NRS - unkn
            Involvement:
              RS - separate bank accounts NRS -
            Lifestyle changes: unknown
            NRS’s elusiveness: none, RS prepared the returns
            Duty to inquire:    he prepared the return,
                                he knew about the pension
                                withdrawal, NRS wthd the
                                income before they were
                                married, but she gave the
                                1099 to RS, the income was
                                    - 11 -

                                 reported on return, penalty
                                 was not
             Living arrangements: married
                                  11-27-2004
        RS had knowledge or reason to know              Against
        Explanation:   income was reported
                       on the return, did
                       not claim line 59 on
                       1040
        No significant benefit gained                        For
        Made a good faith effort to comply                   For
        with the tax laws
        Explanation:   has not filed 2006,
                       but his only income
                       is SS
        Unique circumstances: none
        Not meeting Tier II factors - deny claim
        Tier II consideration:   Based on the above facts it is
                                 equitable to hold the RS lia-
                                 ble for the balance. [H]ad
                                 actual knowledge, no hardship
                                 or abuse

        On June 19, 2007, respondent’s Cincinnati centralized

innocent spouse operation (CCISO) sent to petitioner Letter 3661C

(CCISO’s June 19, 2007 letter).11        In that letter, CCISO notified

petitioner that it had denied his claim for relief under section

6015.

     On June 25, 2007, Ms. Haigh paid to respondent $1,726.61 as

a bond against the deficiency that respondent determined in the

2004 notice and interest as provided by law as of that date.

Around October 1, 2007, respondent applied that bond as a payment

against that deficiency and that interest.




        11
             The record does not contain CCISO’s June 19, 2007 letter.
                              - 12 -

     On July 6, 2007, petitioner sent to respondent a letter

(petitioner’s July 6, 2007 protest) in which he protested the

denial of relief under section 6015 in CCISO’s June 19, 2007

letter.   In petitioner’s July 6, 2007 protest, petitioner also

asserted that the deficiency that respondent determined in the

2004 notice was wrong because respondent determined in that

notice that during 2004 the Haighs received more gross income

than they in fact received, which caused respondent’s determina-

tion of petitioner’s taxable Social Security benefits to be

incorrect.   In petitioner’s July 6, 2007 protest, petitioner

restated his request that respondent allow him to file an amended

return for his taxable year 2004 in order to elect married filing

separately status.

     On January 15, 2008, respondent assigned an Appeals officer

in respondent’s Appeals Office (respondent’s Appeals officer) to

consider petitioner’s July 6, 2007 protest.   Respondent’s Appeals

officer sent three letters to petitioner, dated January 16,

January 17, and February 4, 2008, respectively.   In the letter

dated January 16, 2008, respondent’s Appeals officer explained to

petitioner that respondent is not allowed under section 6015 to

compute petitioner’s tax liability for his taxable year 2004 as

if his filing status were married filing separately and that

relief under that section requires respondent to allocate the

deficiency determined in the 2004 notice based upon the items
                             - 13 -

shown in the 2004 joint return.   In the respective letters dated

January 17 and February 4, 2008, respondent’s Appeals officer

explained to petitioner the propriety of respondent’s determina-

tion in the 2004 notice that petitioner’s taxable Social Security

benefits are $16,138.

     On February 11, 2008, respondent’s Appeals officer sent to

petitioner another letter (February 11, 2008 letter).   In that

letter, respondent’s Appeals officer again explained the propri-

ety of respondent’s determination with respect to petitioner’s

taxable Social Security benefits.   In the February 11, 2008

letter, respondent’s Appeals officer also informed petitioner:

     I disagree with your request to split the case into two
     married filing separate cases. I disagree with allow-
     ing an [sic] innocent spouse relief.

     You made the decision to file jointly, I don’t find you
     meet the criteria to qualify for innocent spouse relief
     and the liability has been paid.

     Let me know in one week if you will agree. If not, I
     will forward your case for trial preparation.

     In an Appeals Transmittal and Case Memo-INNSP dated February

22, 2008 (February 22, 2008 transmittal memo) that respondent’s

Appeals officer prepared, respondent’s Appeals officer set forth

his conclusions with respect to the positions that petitioner

took in petitioner’s July 6, 2007 protest.   With respect to

petitioner’s position that respondent erred in determining in the

2004 notice that petitioner’s taxable Social Security benefits
                             - 14 -

are $16,138, respondent’s Appeals officer concluded in the

February 22, 2008 transmittal memo:

     The petitioning husband didn’t agree to the computation
     of the taxable social security, which was computational
     and mostly taxed [sic] by mathematical error proce-
     dures. * * *

     There should be no disagreement in this case, but the
     petitioner was unwilling or unable to understand the
     computations of the taxable social security income, and
     still maintains that he should be [sic] a refund from
     the original return.

     With respect to petitioner’s position that he is entitled to

relief under section 6015(b), respondent’s Appeals officer

concluded in the February 22, 2008 transmittal memo:

     In my examination of the facts of the case, I find a
     joint return [w]as filed, the error on the return was
     not attributable to erroneous items of the other
     spouse, the requesting spouse may not have known about
     the error but should have known of the error when the
     income was reported, I find it equitable to hold the
     requester liable, and the claim was timely filed from a
     the [sic] issued notice of deficiency.

     With respect to petitioner’s position that he is entitled to

relief under section 6015(c), respondent’s Appeals officer

concluded in the February 22, 2008 transmittal memo:

     If the petitioning husband can meet his burden of proof
     that he is not equally liable, the portion of the
     liability attributable to the early withdrawal penalty
     could be shifted to his ex spouse. There is no need to
     shift that liability since the other spouse has paid in
     full.
                             - 15 -

     With respect to petitioner’s position that he is entitled to

relief under section 6015(f), respondent’s Appeals officer

concluded in the February 22, 2008 transmittal memo:

     Under (f) there are factors that can be used to deter-
     mine if equitable relief exists.

          a) There is no marital status now so either one
          can have relief.
          b) Is there no economic hardship for the taxpay-
          ers, even though questionable with Jeff allegedly
          in bankruptcy?
          c) There are no indications of abuse.
          d) I believe the facts are clear in the details of
          the workpapers that the taxpayer kept their dis-
          tance and did not know of the issues that created
          the deficiencies for the other spouse.
          e) Neither spouse has the legal obligation to the
          income tax liability of the other outside IRS
          joint liability provisions.
          f) The liability is attributable to each spouse as
          set out above.

     In response the criteria under (f), I find the spouse
     are not separated and working on a divorce, so I don’t
     know if they have been separated long enough for inno-
     cent spouse relief. There is no hardship and the
     amount has been paid. Abuse is not an issue. Both
     spouses should have been aware of the issues. There is
     no other final legal action to determine if either
     spouse should pay the liability, but as stated, the
     other spouse has already paid. If we had to split the
     liability, the penalty portion could be attributable to
     the other spouse by computations, but it has been paid.

     In summary, I don’t find the petitioner meets suffi-
     cient criteria for innocent spouse relief and the issue
     is irrelevant since the tax has been paid. [Reproduced
     literally.]

                             OPINION

     Petitioner has the burden of establishing that the determi-

nations in the 2004 notice are wrong.   See Rule 142(a); Welch v.
                                 - 16 -

Helvering, 290 U.S. 111, 115 (1933).        Petitioner also bears the

burden of proof with respect to the new issues that he is rais-

ing, including his claim under section 6015.12       See Rule 142(a).

Claimed Right To File an Amended Return

     It is petitioner’s position that although Ms. Haigh and he

filed the 2004 joint return, he is entitled to file an amended

return for his taxable year 2004 in order to (1) change his

married filing jointly status in the 2004 joint return to married

filing separately status, (2) correct erroneous determinations

that respondent made in the 2004 notice, and (3) claim itemized

deductions in excess of those claimed in the 2004 joint return.

What petitioner apparently fails to understand is that we have

jurisdiction to redetermine in a trial de novo13 a deficiency for

a taxable year properly before us.        See secs. 6213(a) and

6214(a); O’Dwyer v. Commissioner, 266 F.2d 575, 580 (4th Cir.

1959), affg. 28 T.C. 698 (1957).     We may redetermine the correct

amount of a deficiency for a taxable year properly before us even

though the amount so redetermined is greater, or less, than the

amount of the deficiency that the Commissioner determined for

that year.   See sec. 6214(a).    In redetermining the correct

     12
      In a so-called stand-alone nondeficiency case, the stan-
dard of review under sec. 6015(f) is de novo. Porter v. Commis-
sioner, 132 T.C. ___ (2009).
     13
      At a trial de novo, both the taxpayer and the Commissioner
may present evidence in support of their respective positions on
the issues presented.
                               - 17 -

amount of a deficiency for a taxable year properly before us, we

may consider any issue that a party properly raises, including

issues relating to the determinations in a notice of deficiency,

alleged errors of the taxpayer in a tax return, filing status,

and relief under section 6015.    See, e.g., Powerstein v. Commis-

sioner, 99 T.C. 466, 472-473 (1992); Naftel v. Commissioner, 85

T.C. 527, 533 (1985).    We reject petitioner’s position that he is

entitled to file an amended return for his taxable year 2004.

Claimed Married Filing Separately Status

     It is petitioner’s position that he is entitled to married

filing separately status for his taxable year 2004.14   In support

of that position, petitioner argues that the 2004 joint return is

void because he signed that return under duress.

     Section 6013(a) permits a husband and wife to file jointly a

single tax return (joint return).    Where spouses elect to file a

joint return for a taxable year, which petitioner and Ms. Haigh

did for their taxable year 2004, they are required to compute

their tax for the taxable year on the aggregate income of both

spouses, and the liability for that tax is joint and several.

See sec. 6013(d)(3).    Where spouses, like petitioner and Ms.

Haigh, filed a joint return with respect to a taxable year,



     14
      We have rejected petitioner’s position that he is entitled
to file an amended return for his taxable year 2004 in order,
inter alia, to elect married filing separately status.
                                - 18 -

neither spouse may thereafter elect married filing separately

status for that taxable year where, as is true here, the time for

filing the tax return of either spouse has expired.    See Ladden

v. Commissioner, 38 T.C. 530, 534 (1962); sec. 1.6013-1(a)(1),

Income Tax Regs.   However, a joint return for a taxable year that

is signed under duress is not a joint return for that year for

purposes of section 6013, and the spouse who signed the joint

return under duress will not be held jointly and severally liable

for any deficiency in tax that the Commissioner determines.    See

Stanley v. Commissioner, 81 T.C. 634, 637-638 (1983); sec.

1.6013-4(d), Income Tax Regs.

     In order to prove that a taxpayer signed a joint return

under duress, the taxpayer must show (1) that the taxpayer was

unable to resist the demands of the taxpayer’s spouse to sign the

joint return and (2) that the taxpayer would not have signed the

joint return absent the constraint that the taxpayer’s spouse

applied to the taxpayer’s will.     Stanley v. Commissioner, supra

at 638.   The determination of whether the taxpayer signed a joint

return under duress is dependent on the facts and is measured by

a wholly subjective standard.     Id.

     We have found that petitioner prepared, and timely filed

with Ms. Haigh, the 2004 joint return.    On the record before us,

we find that petitioner has failed to carry his burden of estab-

lishing that Ms. Haigh demanded that he sign that return, let
                             - 19 -

alone that she made demands that he was unable to resist.    On

that record, we find that petitioner has failed to carry his

burden of establishing that he signed the 2004 joint return under

duress.15

     In further support of his position that he is entitled for

his taxable year 2004 to married filing separately status,

petitioner argues that the 2004 joint return is void by operation

of the law of the State of Iowa (Iowa law) and that respondent

violated the 10th Amendment (10th Amendment) to the United States

Constitution (Constitution) when respondent refused to allow

petitioner to file an amended return for his taxable year 2004 in

order to elect married filing separately status.   As we under-

stand petitioner’s argument, (1) Iowa law required him to sign

all documents needed in order to enforce the prenuptial agree-

ment, Iowa Code Ann. sec. 596.4 (West 2001); (2) he signed the

2004 joint return in accordance with that law and the terms of

the prenuptial agreement; (3) Ms. Haigh violated Iowa law and

breached the prenuptial agreement when she refused to sign

certain documents relating to the Haighs’ taxable year 2004;

(4) because of that breach the provision of the prenuptial



     15
      Petitioner contends that respondent failed to present
evidence establishing that petitioner was not under duress when
he signed the 2004 joint return. Petitioner, and not respondent,
bears the burden of establishing that he signed the 2004 joint
return under duress.
                              - 20 -

agreement requiring petitioner and Ms. Haigh to file a joint tax

return was made inoperable by Iowa law and therefore the 2004

joint return is void; and (5) respondent’s refusal to allow him

to file an amended tax return for his taxable year 2004 in order

to elect married filing separately status fails to give effect to

the Iowa law that petitioner asserts rendered the 2004 joint

return void.

     The 10th Amendment to the Constitution provides:    “The

powers not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”   Assuming arguendo that peti-

tioner’s assertions with respect to the meaning and effect of

Iowa law were correct, we conclude that respondent’s actions did

not violate the 10th Amendment to the Constitution.

     On the record before us, we find that petitioner has failed

to carry his burden of establishing that he is entitled for his

taxable year 2004 to married filing separately status.

Claimed Itemized Deductions

     It is petitioner’s position that he is entitled for his

taxable year 2004 to certain itemized deductions in excess of

those that the Haighs claimed in the 2004 joint return.    Before

considering whether petitioner is entitled to any such additional

itemized deductions, we address petitioner’s claim that respon-

dent violated his right to due process under the 14th Amendment
                               - 21 -

(Due Process Clause) to the Constitution when respondent re-

fused to allow him to file an amended return for his taxable year

2004.

     The Due Process Clause applies to the actions of State

governments.   Respondent is an officer of the Federal Government

and is therefore not subject to that amendment.   Respondent is

subject to the Fifth Amendment to the Constitution (Fifth Amend-

ment).   That amendment provides in pertinent part:   “No person

shall be * * * deprived of life, liberty, or property, without

due process of law”.   We shall construe petitioner’s claim under

the Due Process Clause as a claim under the Fifth Amendment.

     In support of his argument under the Fifth Amendment,

petitioner asserts:    (1) Respondent made erroneous determinations

in the 2004 notice by determining that during 2004 the Haighs

received more gross income than they in fact received;

(2) because of an oversight the Haighs did not claim in the 2004

joint return all of the itemized deductions to which they are

entitled (Haighs’ additional itemized deductions); (3) petitioner

attempted to file Form 1040X, Amended U.S. Individual Income Tax

Return, jointly with Ms. Haigh for the Haighs’ taxable year 2004

in order to correct respondent’s erroneous determinations in the

2004 notice and the Haighs’ error in not claiming the Haighs’

additional itemized deductions, but Ms. Haigh refused to sign

that form; and (4) respondent’s refusal to allow him to file an
                               - 22 -

amended return for his taxable year 2004 in order to correct the

Haighs’ failure to claim the Haighs’ additional itemized deduc-

tions and respondent’s erroneous determinations in the 2004

notice prevents him from “defending himself from unjust joint and

several claims”.

     We have rejected petitioner’s claim that he is entitled to

file an amended return for his taxable year 2004.      We conclude

that respondent did not violate petitioner’s rights under the

Fifth Amendment.

     We turn now to whether petitioner is entitled for his

taxable year 2004 to certain itemized deductions in excess of

those that the Haighs claimed in the 2004 joint return.      Peti-

tioner presented no evidence in support of his position that he

is entitled to any such additional deductions.      On the record

before us, we find that petitioner has failed to carry his burden

of establishing that he is entitled for his taxable year 2004 to

certain itemized deductions in excess of those that the Haighs

claimed in the 2004 joint return.

Claimed Errors in the 2004 Notice

     The parties stipulated:   “Petitioner and respondent agree

that the proposed adjustments in tax liability included in the

notice of deficiency are correct.”      Petitioner also testified

that those determinations are correct.      Petitioner nonetheless

claims that there are errors in the 2004 notice.
                                - 23 -

     We turn first to respondent’s determinations in the 2004

notice that during 2004 petitioner received total and taxable

Social Security benefits of $18,986 and $16,138, respectively.

We have found, and petitioner admits, that the Haighs reported in

the 2004 joint return total Social Security benefits of only

$18,437.     We have found, and petitioner admits, that he received

$18,986.20 in total Social Security benefits as reported by the

SSA in Form SSA-1099 that it issued to petitioner for his taxable

year 2004.     On the record before us, we sustain respondent’s

determination that during 2004 petitioner received $18,98616 of

total Social Security benefits.

     The portion of a taxpayer’s total Social Security benefits

that is taxable is determined under section 86.     On the record

before us, we find that petitioner has failed to carry his burden

of showing error in respondent’s determination in the 2004 notice

that $16,138 of the $18,986 of the total Social Security benefits

that he received during 2004 is taxable Social Security benefits.

On that record, we sustain that determination.

     We turn next to respondent’s determination in the 2004

notice to impose the additional tax under section 72(t) with

respect to Ms. Haigh’s IRA distribution.     Section 72(t)(1)

provides:



     16
          See supra note 9.
                                - 24 -

     SEC. 72.   ANNUITIES; CERTAIN PROCEEDS OF ENDOWMENT AND
                LIFE INSURANCE CONTRACTS.

          (t) 10-Percent Additional Tax on Early Distribu-
     tions from Qualified Retirement Plans.--

               (1) Imposition of additional tax.--If any
          taxpayer receives any amount from a qualified
          retirement plan (as defined in section
          4974(c)), the taxpayer’s tax under this chap-
          ter for the taxable year in which such amount
          is received shall be increased by an amount
          equal to 10 percent of the portion of such
          amount which is includible in gross income.

     Section 72(t)(2) provides certain exceptions to the 10-

percent additional tax imposed by section 72(t)(1).    Petitioner

admits that Ms. Haigh’s IRA distribution is subject to the 10-

percent additional tax under section 72(t).    Petitioner also

admits that the Haighs were required to report that additional

tax in the 2004 joint return.    On the record before us, we

sustain respondent’s determination to impose the 10-percent

additional tax under section 72(t) with respect to Ms. Haigh’s

IRA distribution.

Claimed Relief Under Section 6015

     It is petitioner’s position that he is entitled to relief

under section 6015 for the portion of the deficiency that respon-

dent determined in the 2004 notice that is attributable to the

10-percent additional tax with respect to Ms. Haigh’s IRA distri-

bution.   Before considering that position, we shall address two

constitutional claims that petitioner raises.
                              - 25 -

     As we understand it, petitioner claims that respondent

violated (1) his right to confront witnesses under the Confronta-

tion Clause of the Sixth Amendment to the Constitution (Confron-

tation Clause) and (2) the Due Process Clause.17   In support of

those claims, petitioner argues:   (1) Respondent was required,

but failed, to provide him with a copy of Ms. Haigh’s Form 12508;

(2) respondent was required, but failed, to allow him to respond

to the information contained in Ms. Haigh’s Form 12508; and

(3) respondent failed to produce Ms. Haigh as a witness at the

trial in this case, thereby denying him the opportunity to

confront and cross-examine her.

     With respect to petitioner’s claim under the Confrontation

Clause, that clause provides in pertinent part:    “In all criminal

prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him”.   The Confrontation

Clause applies only to criminal prosecutions.   See United States

v. Ray, 530 F.3d 666, 668 (8th Cir. 2008).    This case is not a

criminal prosecution.   We conclude that respondent did not

violate any rights of petitioner under the Confrontation Clause.




     17
      For the reasons stated above, we shall treat petitioner’s
claim under the Due Process Clause as a claim under the Fifth
Amendment.
                                - 26 -

     With respect to petitioner’s claim under the Fifth Amend-

ment,18 that claim, inter alia, rests upon erroneous factual

premises.     Petitioner’s claim under the Fifth Amendment assumes

that respondent had obligations to (1) provide him with the

information that Ms. Haigh sent to respondent and (2) call Ms.

Haigh as a witness at the trial in this case.       Section 1.6015-

6(a)(1), Income Tax Regs., provides in pertinent part:       “Upon the

request of either spouse, the Internal Revenue Service will share

with one spouse the information submitted by the other spouse”.

Petitioner could have requested a copy of Ms. Haigh’s Form 12508.

He did not.     Petitioner also could have subpoenaed Ms. Haigh as a

witness at the trial in this case.       See Rule 147. He did not.    We

conclude that respondent did not violate petitioner’s rights

under the Fifth Amendment.19

     We turn now to petitioner’s position that he is entitled to

relief under section 6015(b), (c), or (f) with respect to the

portion of the deficiency attributable to the 10-percent addi-

tional tax imposed with respect to Ms. Haigh’s IRA distribution.




     18
          See supra note 17.
     19
      Assuming arguendo that the factual premises underlying
petitioner’s claim under the Fifth Amendment were correct, we
nonetheless would conclude that respondent did not violate
petitioner’s rights under the Fifth Amendment.
                           - 27 -

Section 6015(b)

Section 6015(b) provides in pertinent part:

SEC. 6015.     RELIEF FROM JOINT AND SEVERAL LIABILITY ON
               JOINT RETURN.

     (b) Procedures For Relief From Liability Applica-
ble to All Joint Filers.--

          (1) In general.--Under procedures prescribed
     by the Secretary, if–-

                  (A) a joint return has been made for a
             taxable year;

                   (B) on such return there is an under-
             statement of tax attributable to erroneous
             items of 1 individual filing the joint re-
             turn;

                  (C) the other individual filing the
             joint return establishes that in signing the
             return he or she did not know, and had no
             reason to know, that there was such under-
             statement;

                  (D) taking into account all the facts
             and circumstances, it is inequitable to hold
             the other individual liable for the defi-
             ciency in tax for such taxable year attribut-
             able to such understatement; and

                  (E) the other individual elects (in such
             form as the Secretary may prescribe) the
             benefits of this subsection not later than
             the date which is 2 years after the date the
             Secretary has begun collection activities
             with respect to the individual making the
             election,

     then the other individual shall be relieved of
     liability for tax (including interest, penalties,
     and other amounts) for such taxable year to the
     extent such liability is attributable to such
     understatement.
                                   - 28 -

     Section 6015(b)(3) provides:         “For purposes of this subsec-

tion, the term ‘understatement’ has the meaning given to such

term by section 6662(d)(2)(A).”        Section 6662(d)(2)(A) provides:

     SEC. 6662.        IMPOSITION OF ACCURACY-RELATED PENALTY ON
                       UNDERPAYMENTS.

              (d) Substantial Understatment of Income Tax.--

          *        *         *        *       *       *       *

                   (2) Understatement.--

                        (A) In general.--For purposes of para-
                   graph (1), the term “understatment” means the
                   excess of--

                               (i) the amount of the tax required
                          to be shown on the return for the tax-
                          able year, over

                               (ii) the amount of the tax imposed
                          which is shown on the return, reduced by
                          any rebate (within the meaning of sec-
                          tion 6211(b)(2)).

     Section 6015(b)(1) is similar to former section

6013(e)(1).20     We may look at cases interpreting section

6013(e)(1) for guidance when analyzing parallel provisions of

section 6015.     See Jonson v. Commissioner, 118 T.C. 106, 119

(2002), affd. 353 F.3d 1181 (10th Cir. 2003).        The failure by a

spouse requesting relief (requesting spouse) under section

6015(b) to satisfy any of the requirements of that section


     20
      In 1998, Congress repealed sec. 6013(e) and replaced it
with sec. 6015. Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, sec. 3201, 112 Stat. 734.
Sec. 6015 applies to any liability for tax remaining unpaid as of
July 22, 1998. Id. sec. 3201(g)(1), 112 Stat. 740.
                              - 29 -

prevents that spouse from qualifying for such relief.     Alt v.

Commissioner, 119 T.C. 306, 313 (2002), affd. 101 Fed. Appx. 34

(6th Cir. 2004).

     We shall address only whether petitioner meets the require-

ments of section 6015(b)(1)(C).     That is because our resolution

of that question resolves the question of whether petitioner is

entitled to relief under section 6015(b) regarding the portion of

the deficiency attributable to the 10-percent additional tax

imposed with respect to Ms. Haigh’s IRA distribution.

     In support of his position that he meets the requirements of

section 6015(b)(1)(C), petitioner argues that when he was prepar-

ing the 2004 joint return he did not know that Ms. Haigh had

failed to pay the 10-percent additional tax with respect to the

IRA distribution that she received in 2004.     What petitioner may,

or may not, have known regarding whether Ms. Haigh paid that

additional tax is not material to our determining whether peti-

tioner knew or had reason to know of the understatment of tax

shown in the 2004 joint return.     See sec. 6015(b)(1)(C).   The

Haighs were required to report the 10-percent additional tax in

the 2004 joint return, regardless of whether Ms. Haigh had

already paid it.   We have found:    (1) Petitioner prepared the

2004 joint return; (2) in that return the Haighs included in

income Ms. Haigh’s $13,977.12 IRA distribution; (3) when peti-
                                 - 30 -

tioner was preparing that return he knew (a) that Ms. Haigh

received the IRA distribution in 2004 before she was 59-1/2 years

old and (b) that that distribution was subject to the 10-percent

additional tax; and (4) the Haighs did not report in the 2004

joint return the 10-percent additional tax with respect to Ms.

Haigh’s IRA distribution.

     On the record before us, we find that petitioner had actual

knowledge of the understatement of tax attributable to the 10-

percent additional tax with respect to Ms. Haigh’s IRA distribu-

tion.     On that record, we further find that petitioner has failed

to carry his burden of establishing that he satisfies section

6015(b)(1)(C).

     On the record before us, we find that petitioner has failed

to carry his burden of establishing that he is entitled to relief

under section 6015(b) for his taxable year 2004.

     Section 6015(c)

        Section 6015(c) provides in pertinent part:

        SEC. 6015.   RELIEF FROM JOINT AND SEVERAL LIABILITY ON
                     JOINT RETURN.

             (c) Procedures To Limit Liability for Taxpayers No
        Longer Married or Taxpayers Legally Separated or Not
        Living Together.--

                  (1) In general.--Except as provided in this
             subsection, if an individual who has made a joint
             return for any taxable year elects the application
             of this subsection, the individual’s liability for
             any deficiency which is assessed with respect to
                               - 31 -

            the return shall not exceed the portion of such
            deficiency properly allocable to the individual
            under subsection (d).

        *        *        *        *         *       *       *

                 (3) Election.--

                      (A) Individuals eligible to make
                 election.--

                          (i) In general.--An individual shall
                      only be eligible to elect the applica-
                      tion of this subsection if--

                             (I) at the time such election is
                         filed, such individual is no longer
                         married to, or is legally separated
                         from, the individual with whom such
                         individual filed the joint return to
                         which the election relates; or

                             (II) such individual was not a
                         member of the same household as the
                         individual with whom such joint re-
                         turn was filed at any time during
                         the 12-month period ending on the
                         date such election is filed.

     We shall address only whether petitioner meets the require-

ments of section 6015(c)(3)(A).        That is because our resolution

of that question resolves the question of whether petitioner is

entitled to relief under section 6015(c) regarding the portion of

the deficiency attributable to the 10-percent additional tax with

respect to Ms. Haigh’s IRA distribution.

     We have found:    (1) On February 24, 2007, petitioner sent to

respondent petitioner’s February 24, 2007 letter to which he

attached petitioner’s Form 12507; (2) respondent treated the
                                 - 32 -

receipt of that letter and that Form 12507 as the filing by

petitioner of Form 8857, Request for Innocent Spouse Relief, and

began an investigation to determine whether he was eligible for

relief under section 6015; (3) at no time before February 25,

2007, were petitioner and Ms. Haigh divorced or legally sepa-

rated, see sec. 6015(c)(3)(A)(i)(I); and (4) on February 24,

2007, petitioner and Ms. Haigh began to live apart, see sec.

6015(c)(3)(A)(i)(II).      On the record before us, we find that

petitioner does not satisfy section 6015(c)(3)(A).

     On the record before us, we find that petitioner is not

entitled to relief under section 6015(c) for his taxable year

2004.

     Section 6015(f)

        Section 6015(f) provides:

        SEC. 6015.   RELIEF FROM JOINT AND SEVERAL LIABILITY ON
                     JOINT RETURN.

             (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 indi-
             vidual liable for any unpaid tax or any deficiency
             (or any portion of either); and

                  (2) relief is not available to such individ-
             ual under subsection (b) or (c),

        the Secretary may relieve such individual of such
        liability.

        As directed by section 6015(f), the Commissioner has pre-

scribed procedures in Rev. Proc. 2003-61, 2003-2 C.B. 296 (Reve-
                             - 33 -

nue Procedure 2003-61) that are to be used in determining whether

it would be inequitable to find the requesting spouse liable for

part or all of the deficiency in question.    That revenue proce-

dure lists seven threshold conditions (threshold conditions)

which must be satisfied before the Commissioner will consider a

request for relief under section 6015(f).    Rev. Proc. 2003-61,

sec. 4.01, 2003-2 C.B. at 297.   Respondent concedes that those

conditions are satisfied in the instant case.

     Where, as here, the requesting spouse satisfies the thresh-

old conditions, Revenue Procedure 2003-61 sets forth the follow-

ing factors that are to be considered in determining whether that

spouse is entitled to relief under section 6015(f):    (1) Whether

the requesting spouse is separated or divorced from the

nonrequesting spouse (marital status factor); (2) whether the

requesting spouse would suffer economic hardship if not granted

relief (economic hardship factor); (3) whether the requesting

spouse knew or had reason to know of the item giving rise to the

deficiency (knowledge factor); (4) whether the nonrequesting

spouse has a legal obligation to pay the outstanding tax liabil-

ity pursuant to a divorce decree or agreement (legal obligation

factor); (5) whether the requesting spouse received a significant

benefit from the item giving rise to the deficiency (significant

benefit factor); (6) whether the requesting spouse has made a

good faith effort to comply with tax laws for the taxable years
                                - 34 -

following the taxable year to which the request for such relief

relates (compliance factor).    See Rev. Proc. 2003-61, sec.

4.03(2)(a), 2003-2 C.B. at 298.

     Other factors that may be considered under Revenue Procedure

2003-61 are (1) whether the nonrequesting spouse abused the

requesting spouse (abuse factor) and (2) whether the requesting

spouse was in poor mental or physical health (mental or physical

health factor) at the time he or she signed the tax return

(return) or at the time he or she requested relief.    Rev. Proc.

2003-61, sec. 4.03(2)(b), 2003-2 C.B. at 299.    Where (1) the

nonrequesting spouse abused the requesting spouse or (2) the

requesting spouse was in poor mental or physical health at the

time he or she signed the return or at the time he or she re-

quested relief, the abuse factor or the mental or physical health

factor, as the case may be, will be taken into account.    Id.

However, where (1) the nonrequesting spouse did not abuse the

requesting spouse or (2) the requesting spouse was not in poor

mental or physical health at the time he or she signed the return

or at the time he or she requested relief, the abuse factor or

the mental or physical health factor, as the case may be, will

not be taken into account.     Id.

     In making our determination under section 6015(f), we shall

consider the factors set forth in Revenue Procedure 2003-61 and

any other relevant factors.    No single factor is to be determina-
                               - 35 -

tive in any particular case, and all factors are to be considered

and weighed appropriately.

     With respect to the marital status factor, we have found

that on February 24, 2007, petitioner and Ms. Haigh began living

apart.21   On the record before us, we find that petitioner and

Ms. Haigh were separated at the time petitioner requested relief

under section 6015(f).

     With respect to the economic hardship factor,22 on the



     21
      On or about Mar. 6, 2007, Ms. Haigh initiated a proceeding
for divorce in the Iowa District Court, Woodbury County.
     22
      In determining whether a requesting spouse will suffer
economic hardship, Rev. Proc. 2003-61, sec. 4.02(1)(c), 2003-2
C.B. 296, 298, requires reliance on rules similar to those
provided in sec. 301.6343-1(b)(4), Proced. & Admin. Regs. That
regulation generally provides that an individual suffers an
economic hardship if the individual is unable to pay his or her
reasonable basic living expenses. Sec. 301.6343-1(b)(4), Proced.
& Admin. Regs., provides in pertinent part:

          (ii) Information from taxpayer.--In determining a
     reasonable amount for basic living expenses the direc-
     tor will consider any information provided by the
     taxpayer including--

             (A) The taxpayer's age, employment status and
     history, ability to earn, number of dependents, and
     status as a dependent of someone else;

             (B) The amount reasonably necessary for food,
     clothing, housing (including utilities, home-owner
     insurance, home-owner dues, and the like), medical
     expenses (including health insurance), transportation,
     current tax payments (including federal, state, and
     local), alimony, child support, or other court-ordered
     payments, and expenses necessary to the taxpayer's
     production of income (such as dues for a trade union or
                                                   (continued...)
                               - 36 -

record before us, we find that petitioner has failed to carry his

burden of establishing the amount of his basic living expenses.

On that record, we also find that petitioner has failed to carry

his burden of establishing that he would be unable to pay his

basic living expenses if he were required to pay the portion of

the deficiency determined in the 2004 notice that is attributable

to the 10-percent additional tax with respect to Ms. Haigh’s IRA

distribution.23   On the record before us, we find that petitioner

has failed to carry his burden of establishing that he would

suffer economic hardship if not granted relief under section

6015(f).



     22
      (...continued)
     professional organization, or child care payments which
     allow the taxpayer to be gainfully employed);

             (C) The cost of living in the geographic area
     in which the taxpayer resides;

             (D) The amount of property exempt from levy
     which is available to pay the taxpayer's expenses;

             (E) Any extraordinary circumstances such as
     special education expenses, a medical catastrophe, or
     natural disaster; and

             (F) Any other factor that the taxpayer claims
     bears on economic hardship and brings to the attention
     of the director.
     23
      Indeed, we have found (1) that on June 25, 2007, Ms. Haigh
paid to respondent $1,726.61 as a bond against the deficiency
that respondent determined in the 2004 notice and interest as
provided by law as of that date and (2) that around Oct. 1, 2007,
respondent applied that bond as a payment against that deficiency
and that interest.
                                - 37 -

     With respect to the knowledge factor, we have found:

(1) Petitioner prepared the 2004 joint return; (2) in that return

the Haighs included in income Ms. Haigh’s $13,977.12 IRA distri-

bution; (3) when he was preparing the 2004 joint return peti-

tioner knew (a) that Ms. Haigh received the IRA distribution in

2004 before she was age 59-1/2 years old and (b) that that

distribution was subject to the 10-percent additional tax; and

(4) the Haighs did not report in the 2004 joint return the 10-

percent additional tax with respect to Ms. Haigh’s IRA distribu-

tion.   On the record before us, we find that petitioner had

actual knowledge (1) that the IRA distribution that Ms. Haigh

received in 2004 before she was 59-1/2 years old was includible

in income and (2) that that distribution was subject to the 10-

percent additional tax.

     With respect to the legal obligation factor, on the record

before us, we find that petitioner has failed to carry his burden

of establishing that there is any agreement that provides that

Ms. Haigh has a legal obligation to pay any outstanding tax

liability that she and petitioner incurred while married.

     With respect to the significant benefit factor, respondent

does not dispute that petitioner did not receive a benefit beyond

normal support from Ms. Haigh’s IRA distribution.   Normal support

is not a significant benefit.    Flynn v. Commissioner, 93 T.C.

355, 367 (1989).
                              - 38 -

     With respect to the compliance factor, respondent does not

dispute that petitioner has made a good faith effort to comply

with the tax laws for taxable years after 2004.

     With respect to the abuse factor, we have found:   (1) In

1984 petitioner was involved in an automobile accident and

suffered a broken neck; (2) beginning around 2000 he became a

patient at a pain clinic to which he was referred by certain

staff at the Mayo Clinic; and (3) he takes certain prescription

medications in order to alleviate the pain associated with the

neck injury that he suffered in 1984.   Petitioner testified that,

because of the pain medications that he takes, stressful situa-

tions can be disorienting and difficult for him.   Petitioner

asserts that Ms. Haigh abused him by intentionally creating

stressful situations that could cause him to become disoriented.

On the record before us, we find that petitioner has failed to

carry his burden of establishing that Ms. Haigh abused him.

     With respect to the mental or physical health factor, as

discussed above, we have found:   (1) In 1984 petitioner was

involved in an automobile accident and suffered a broken neck;

(2) beginning around 2000 he became a patient at a pain clinic to

which he was referred by certain staff at the Mayo Clinic; and

(3) he takes certain prescription medications in order to allevi-

ate the pain associated with the neck injury that he suffered in

1984.   On the record before us, we find that petitioner had
                                 - 39 -

health issues at the time he signed the 2004 joint return and at

the time he requested relief under section 6015.     However, we

have also found:     (1) Petitioner prepared the 2004 joint return;

and (2) when he was preparing that return he knew (a) that the

IRA distribution that Ms. Haigh received in 2004 before she was

59-1/2 years old was includible in income and (b) that that

distribution was subject to the 10-percent additional tax.     On

the record before us, we find that petitioner has failed to carry

his burden of establishing that his health issues impeded his

ability to meet his tax obligations when he filed the 2004 joint

return and when he requested relief under section 6015(f).24

     With respect to any other factors that are relevant to our

determination of whether petitioner is entitled to relief under

section 6015(f), we have found:     (1) On June 25, 2007, Ms. Haigh

paid to respondent $1,726.61 as a bond against the deficiency

that respondent determined in the 2004 notice and interest as

provided by law as of that date; and (2) around October 1, 2007,

respondent applied that bond as a payment against that deficiency

and that interest.

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry his burden of estab-

lishing that it would be inequitable to hold him liable for the

portion of the deficiency determined in the 2004 notice that is


     24
          See Banderas v. Commissioner, T.C. Memo. 2007-129.
                              - 40 -

attributable to the 10-percent additional tax with respect to Ms.

Haigh’s IRA distribution.

     On the record before us, we find that petitioner has failed

to carry his burden of establishing that he is entitled to relief

under section 6015(f).

     We have considered all of the contentions and arguments of

the parties that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.25

     To reflect the foregoing,


                                       Decision will be entered

                                 for respondent.




     25
      Respondent contends that our scope of review in this case
should be limited to the administrative record that respondent
developed before denying petitioner relief under sec. 6015(f).
That is because, according to respondent, in Robinette v.
Commissioner, 439 F.3d 455 (8th Cir. 2006), revg. 123 T.C. 85
(2004), the United States Court of Appeals for the Eighth
Circuit, the Court to which an appeal in this case would normally
lie, limited our scope of review in cases under secs. 6320 and
6330 to the Commissioner’s administrative record. According to
respondent, “it would be incongruous for this Court to look
outside the administrative record in § 6015 cases, yet (at least
in the Eighth Circuit) be bound by the limits of the
administrative record in CDP matters [involving secs. 6320 and
6330].” Robinette did not involve sec. 6015(f) and is not
squarely in point. We are not required to follow Robinette in
this case. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970),
affd. 445 F.2d 985 (10th Cir. 1971); see also Lardas v.
Commissioner, 99 T.C. 490, 494-495 (1992).
