                         T.C. Memo. 2007-299



                       UNITED STATES TAX COURT



           ROBERT H. AND JUDITH A. GOLDEN, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent*



     Docket No. 16694-04L.               Filed October 1, 2007.



     Robert H. Golden and Judith A. Golden, pro sese.

     Elizabeth R. Proctor and A. Gary Begun, for respondent.



         SUPPLEMENTAL MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:    This case is a collection case commenced under

section 6330(d)(1) relating to petitioners’ 1974 and 1977 through




     *
       This opinion supplements our prior Memorandum Opinion,
Golden v. Commissioner, T.C. Memo. 2005–170.
                               - 2 -

1981 Federal income tax.1   In Golden v. Commissioner, T.C. Memo.

2005-170, the Court decided for respondent through partial

summary adjudication all issues in this case, but for the

correctness of respondent’s denial of a section 6015 claim to

relief (spousal relief) made by Judith A. Golden (petitioner).

We now decide whether respondent abused his discretion in denying

petitioner’s claim to spousal relief.2   We hold he did not.

                         FINDINGS OF FACT

     Petitioner and Robert H. Golden (Golden) are married and

resided in Southfield, Michigan, when their petition was filed

with the Court.   Petitioner holds a college degree and worked as

an elementary schoolteacher from 1964 to 1969.    In 1984, she

completed a course in income tax preparation.    Golden is a

practicing attorney and has practiced law since 1961.

     In the mid-1970s, Golden invested in a partnership on behalf

of petitioners.   Petitioners were each limited partners in the

partnership, and they each received annual reports from the



     1
       Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code, and Rule
references are to the Tax Court Rules of Practice and Procedure.
     2
       Petitioners invite the Court also to decide an issue as to
the proper interest rate applicable in this case. We decline to
do so. As just noted, the Court decided in Golden v.
Commissioner, T.C. Memo. 2005-170, that respondent will prevail
in this case if the Court holds for respondent as to the spousal
relief claim. We also note that petitioners are deemed to have
stipulated under Rule 91(f) that the only issue left to be
decided is whether petitioner is entitled to spousal relief.
                               - 3 -

partnership accompanied by Schedules K-1, Partner’s Share of

Income, Deductions, Credits, etc., reporting their shares of

partnership losses.   Petitioners never realized any income from

their investments in the partnership.

     Petitioners claimed on their joint Federal income tax

returns for the subject years deductions for their distributive

shares of losses reported by the partnership.    At all relevant

times, petitioner knew about her investment in the partnership,

and she knew that she was a limited partner.    In 1981, respondent

notified petitioners that the partnership was under investigation

and that losses generated by the partnership might be disallowed.

After 1981, petitioners ceased deducting losses from the

partnership on their Federal income tax returns.

     Respondent disallowed the partnership loss deductions

petitioners claimed on their Federal income tax returns for the

subject years.   The disallowance resulted in the deficiencies in

tax for which petitioner seeks spousal relief.    Those

deficiencies were assessed pursuant to stipulated decisions

entered by this Court in a deficiency suit brought by

petitioners.

     During the subject years, petitioner was responsible for

balancing the couple’s checkbook, and she had full access to

their joint bank accounts.   She was not abused physically or

mentally by Golden during those years.
                               - 4 -

                              OPINION

      Spouses filing a joint Federal income tax return are

generally jointly and severally liable for tax found to be

owning.   Sec. 6013(d)(3); Butler v. Commissioner, 114 T.C. 276,

282 (2000).   However, it is possible for an individual filing a

joint return to be relieved of joint and several liability.

Section 6015 prescribes three types of relief:   (1) Full or

apportioned relief under section 6015(b), (2) proportionate

relief under section 6015(c), and (3) equitable relief under

section 6015(f).   Petitioner claims entitlement to one or all of

these types of relief.   Except as otherwise provided in section

6015, petitioner bears the burden of proving that claim.   See Alt

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

34 (6th Cir. 2004); see also Rule 142(a)(1).

     To qualify for relief under section 6015(b), a requesting

spouse needs to satisfy the requirements of section 6015(b)(1).

Under section 6015(b)(1), relief may be granted under section

6015(b) if the following requirements are met:   (1) A joint

return has been made for the taxable year, (2) on such return

there is an understatement of tax attributable to erroneous items

of one individual filing the joint tax return, (3) the spouse

seeking relief establishes that in signing the return he or she

did not know, nor have reason to know, that there was an

understatement of tax, and (4) taking into account all of the
                                 - 5 -

facts and circumstances, it is inequitable to hold the requesting

spouse liable for the deficiency in tax for the taxable year

attributable to the understatement.      The requesting spouse’s

failure to meet any one of these requirements prevents him or her

from qualifying for full or apportioned relief under section

6015(b).   Alt v. Commissioner, supra at 313.

     Petitioner does not meet the second, third, or fourth

requirement for full or apportioned relief under section 6015(b).

The erroneous items, the losses from the partnership, are not

attributable solely to Golden.    Petitioner admits that the

investment in the partnership was explained to her and that she

was aware of her status as a limited partner.      She further admits

that she received the annual reports from the partnership listing

her losses, that Golden truthfully discussed the partnership with

her regularly, and that she willingly signed the tax returns for

the subject years without reviewing them.      As to the latter

point, a reasonably prudent person in the position of petitioner,

a college-educated individual, would have reviewed each return

and at least inquired about the losses reported each year.        As

this Court has previously stated in similar settings, a spouse

cannot escape tax responsibilities by ignoring the contents of a

tax return when signing it.   See Mora v. Commissioner, 117 T.C.

279, 289 (2001); Albin v. Commissioner, T.C. Memo. 2004-230; see

also Levin v. Commissioner, T.C. Memo. 1987-7.      Given that
                                - 6 -

petitioner has a college degree, that she had full access to

joint bank accounts, that she balanced the couple’s checkbook,

that she knew of her status as a limited partner in the

partnership, and that she failed to discharge her duty of

inquiry, petitioner is deemed to have had reason to know of the

understatements on the income tax returns for the years at

issue.3   We conclude that petitioner does not qualify for relief

under section 6015(b).

     Section 6015(c) allows a qualifying individual to receive

proportionate relief from joint and several liability for a

deficiency if, in addition to meeting other conditions, upon

electing relief under section 6015(c), the individual is divorced

or legally separated from the other spouse or has lived apart

from the other spouse for the past 12 months.   Petitioner fails

to meet this requirement.   She is still married to and living

with Golden.   We conclude that petitioner does not qualify for

relief under section 6015(c).

     Because we hold that petitioner is not entitled to either

full or proportionate relief under subsection (b) or (c) of

section 6015, we now consider whether she is entitled to

equitable relief.   Under section 6015(f), the Commissioner may

grant equitable relief to an individual if relief is not


     3
       As to the fourth requirement of sec. 6015(b), petitioner
has not presented any evidence that it would be inequitable to
hold her liable for the deficiencies for the subject years.
                               - 7 -

available to the individual under section 6015(b) or (c) and it

would be inequitable to hold the individual liable for the tax

liability.4   Petitioner bears the burden of proving that

respondent’s denial of her claim was an abuse of respondent’s

discretion.   See Washington v. Commissioner, 120 T.C. 137, 146

(2003); Cheshire v. Commissioner, 115 T.C. 183, 198 (2000).     In

order to prevail, petitioner must demonstrate that respondent

exercised his discretion arbitrarily, capriciously, or without

sound basis in fact or law when he denied her the equitable

relief.   See Jonson v. Commissioner, 118 T.C. 106, 125 (2002),

affd. 353 F.3d 1181 (10th Cir. 2003).

     Before the Commissioner will consider a taxpayer’s request

for relief under section 6015(f), the taxpayer must satisfy all

seven threshold conditions listed in Rev. Proc. 2003-61, sec.

4.01, 2003-2 C.B. 296, 297.5   These conditions are as follows:

(1) The requesting spouse filed a joint return for the taxable



     4
       This Court has held that our determination of whether a
taxpayer is entitled to relief under sec. 6015(f) “is made in a
trial de novo and is not limited to matter contained in
respondent’s administrative record”. See Ewing v. Commissioner,
122 T.C. 32, 44 (2004), vacated 439 F.3d 1009 (9th Cir. 2006).
That decision was vacated for lack of jurisdiction. We need not
and do not decide here whether our review of respondent’s denial
of relief under sec. 6015(f) is limited to the administrative
record because our holding would remain the same in any event.
     5
       Although the deficiencies in tax arose in years before the
revenue procedure’s effective date of Nov. 1, 2003, this revenue
procedure is applicable to petitioner’s case as her request for
relief was made after Nov. 1, 2003.
                                - 8 -

year for which he or she seeks relief, (2) relief is not

available to the requesting spouse under section 6015(b) or (c),

(3) the requesting spouse applies for relief no later than 2

years after the date of the Commissioner’s first collection

activity after July 22, 1998, with respect to the requesting

spouse, (4) no assets were transferred between the spouses as

part of a fraudulent scheme by the spouses, (5) the nonrequesting

spouse did not transfer disqualified assets to the requesting

spouse, (6) the requesting spouse did not file or fail to file

the return with fraudulent intent, and (7) the income tax

liability from which the requesting spouse seeks relief is

attributable to an item of the individual with whom the

requesting spouse filed the joint return.    Petitioner fails to

satisfy the last condition; i.e., that the income tax liability

from which the requesting spouse seeks relief be attributable to

an item of the individual with whom the requesting spouse filed

the joint return.

     Petitioners were both limited partners in the partnership,

and petitioner was aware of this fact.    Thus, the item giving

rise to the losses, petitioner’s investment in the partnership,

is not attributable to Golden alone.    Rather, that item is

attributable to both of them.   We conclude that petitioner does

not qualify for relief under section 6015(f).    See Schwendeman v.

Commissioner, T.C. Memo. 2007-227.
                              - 9 -

     We have considered all petitioners’ arguments for holdings

contrary to those expressed herein and reject those arguments not

discussed herein as irrelevant or without merit.


                                           Decision will be entered

                                      for respondent.
