                  T.C. Summary Opinion 2009-87



                     UNITED STATES TAX COURT



               CANDANCE A. DENTON, Petitioner, AND
                  TIMOTHY DENTON, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19779-06S.             Filed June 2, 2009.



     Candance A. Denton, pro se.

     Timothy T. Denton, pro se.

     James R. Rich, for respondent.




     CARLUZZO, Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463.1   Pursuant to section

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


     1
      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.
                                - 2 -

other court, and this opinion shall not be cited as precedent for

any other case.

     In a Final Notice of Determination dated August 10, 2006,

respondent denied petitioner’s claim for section 6015 relief with

respect to the joint and several liability arising from the 2003

joint Federal income tax return filed by petitioner and

intervenor (the 2003 joint return).     According to that notice,

relief was denied because petitioner did not respond to

respondent’s requests for additional information.     In a timely

petition filed September 27, 2006, petitioner challenges

respondent’s determination.    Respondent and intervenor oppose

allowing petitioner any section 6015 relief.     Petitioner readily

admits that she was aware of the item or items resulting in the

understatement of income shown on the 2003 joint return.     Her

admission, in effect, requires us to consider only her

entitlement to relief under section 6015(f).

                              Background

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

At the time the petition was filed, petitioner and intervenor

resided at separate addresses in South Carolina.

     Petitioner and intervenor were married in 1995.     They have

two children.   They separated in 2005 and were divorced in 2006.

As best can be determined from the record, the documents relating

to petitioner’s divorce contain no references to the then-
                                 - 3 -

outstanding income tax liability from which petitioner now seeks

relief.

     During 2003 petitioner worked as a waitress at Bob Evans for

what she describes as a “very, very short period of time”.    She

also worked as a sales representative at Beauty Systems Group,

Inc. (Systems).    The record does not reveal the income, if any,

that she earned as a waitress.    She earned $985 as an employee of

Systems, which, she admits, was not reported on the 2003 joint

return.

     During 2003 intervenor was employed by CDI Services, Inc.

(CDI).    He was also self-employed as a commercial truck driver

during that year primarily, if not exclusively, providing

services for Annette Holdings, Inc. (Holdings).    The truck he

drove was leased from Holdings, and the compensation that he

received as a driver for that company was net of lease,

insurance, and license fees.    Holdings issued intervenor a Form

1099-MISC, Miscellaneous Income, for 2003 showing compensation

totaling $41,798.    That income is not reported on the 2003 joint

return.

     Throughout 2003 petitioner and intervenor lived with

intervenor’s mother in intervenor’s mother’s modular home.

During 2003 intervenor’s mother paid for the majority of

expenses, including food, utilities, and general household

expenses.
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     As relevant here, the 2003 return shows:   (1) Intervenor’s

$5,951 wage income from CDI, (2) $1,946 of unemployment

compensation not specifically attributed to either petitioner or

intervenor, and (3) a $2,390 earned income credit.   As noted,

petitioner’s earnings from Systems ($985) and intervenor’s

compensation from Holdings ($41,798) are not reported on the 2003

return (the omitted items).

     At the time petitioner signed the 2003 joint return she was

aware that the omitted income and her earnings from Systems were

not reported on the return.    She expected that intervenor would

prepare and file an amended return on which the omitted items and

related deductions would be shown.

     Respondent’s examination of the 2003 joint return resulted

in a notice of deficiency that was issued to petitioner and

intervenor on April 11, 2005.   The $9,500 deficiency determined

in that notice of deficiency takes into account the omitted items

(without any offsetting deductions), the disallowance of the

earned income credit, and the imposition of a section 1401 self-

employment tax on the compensation that intervenor received from

Holdings.   Neither petitioner nor intervenor petitioned this

Court in response to that notice of deficiency, and the

deficiency and section 6662(a) penalty determined in the notice

were assessed in due course.    The deficiency is, almost entirely,

attributable to the unreported income earned by intervenor.
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Petitioner did not challenge the deficiency because she assumed

that after an amended return was filed that would take into

account deductions relating to the omitted items, the 2003 income

tax liability would be substantially reduced.

                             Discussion

I.   Introduction

     In general, married taxpayers may elect to file a joint

Federal income tax return.   Sec. 6013(a).   After making the

election for a year, each spouse is jointly and severally liable

for the entire Federal income tax liability assessed for that

year, whether as reported on the joint return or subsequently

determined to be due.   Sec. 6013(d)(3); see sec. 1.6013-4(b),

Income Tax Regs.    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.

     There are three types of relief available under section

6015.   In general, section 6015(b) provides full or apportioned

relief from joint and several liability, section 6015(c) provides

proportionate tax relief to divorced or separated taxpayers, and

section 6015(f) provides equitable relief from joint and several
                                - 6 -

liability in certain circumstances if relief is not available

under section 6015(b) or (c).

      As noted, petitioner is not entitled to relief under section

6015(b) or (c) because, as she readily admitted, at the time she

signed the 2003 joint return she knew that intervenor’s income

from Holdings and her income from Systems were not reported on

that return.   See sec. 6015(b)(1)(C), (c)(3)(C).

      A taxpayer who does not qualify for relief under section

6015(b) or (c) can be relieved from joint and several liability

pursuant to section 6015(f) 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).

      We review, de novo, petitioner’s entitlement to relief under

section 6015(f).   Porter v. Commissioner, 132 T.C. ___, (2009).

II.   Section 6015(f) Relief

      Petitioner’s knowledge at the time she signed the 2003 joint

return weighs heavily against her entitlement to section 6015(f)

relief.   But in considering her entitlement to relief under

section 6015(f), her knowledge is only one factor among many to

be taken into account, and as we have repeatedly noted, no

factor, in and of itself, is determinative.   See Stolkin v.

Commissioner, T.C. Memo. 2008-211; Beatty v. Commissioner, T.C.

Memo. 2007-167; Banderas v. Commissioner, T.C. Memo. 2007-129.

To be fair, petitioner’s knowledge regarding the omitted items of
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income must be considered against her not unreasonable

expectation that her 2003 tax liability would be substantially

reduced upon the filing of an amended return that would show the

omitted items along with allowable deductions related to that

income.

     Separate and apart from her knowledge at the time she signed

the 2003 joint return, or her belief that the errors on that

return would be corrected by an amended return, it remains that

had petitioner not filed a joint return with intervenor for 2003,

her income for that year would not have obligated her to file a

Federal income tax return.   Sec. 6012(a)(1)(A).   Furthermore, a

large part of the liability from which petitioner seeks relief is

attributable to the self-employment tax imposed upon the income

intervenor earned as a truck driver for Holdings.

     Considering the foregoing, and taking into account the

factors the Commissioner considers in matters such as this,2 see

Rev. Proc. 2003-61, 2003-2 C.B. 296, we find that it would be

inequitable to hold petitioner liable for the unpaid portion of



     2
      Respondent never actually considered those factors.
Petitioner’s request for sec. 6015 relief was summarily denied
because she failed to respond to requests for additional
information under circumstances that suggest she might not have
been aware of the requests. See the bench opinion rendered on
Sept. 20, 2007, Columbia, South Carolina. Furthermore, upon
review by respondent’s Appeals Office after the petition was
filed, relief under sec. 6015(f) was not considered because the
Appeals officer concluded that petitioner was entitled to relief
under sec. 6015(c).
                                 - 8 -

the income tax liability resulting from the 2003 joint return.

Petitioner is entitled to relief from that liability under

section 6015(f).

     To reflect the foregoing,


                                         Decision will be entered

                                 under Rule 155.
