                  T.C. Summary Opinion 2005-102



                     UNITED STATES TAX COURT



                 JANI LYN THOMAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14668-04S.              Filed July 21, 2005.


     Jani Lyn Thomas, pro se.

     A. Gary Begun, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

section 7463 in effect at the time the petition was filed.     This

case is before the Court on respondent’s motion for summary

judgment filed pursuant to Rule 121.   All subsequent Rule

references are to the Tax Court Rules of Practice and Procedure.

All section references are to the Internal Revenue Code of 1986,

as amended.
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        The motion arises in the context of a petition filed after

respondent failed to issue a notice of final determination

concerning relief from joint liability under section 6015 within

6 months after receiving petitioner’s Form 8857, Request for

Innocent Spouse Relief.     See sec. 6015(e)(1)(A)(i)(II).

                              Background

        A statutory notice of deficiency for 1999 was sent to

petitioner and her then-husband, Raymond G. Thomas (Thomas), at

two separate addresses.     A Tax Court petition was subsequently

filed in the case of Raymond G. & Jani L. Thomas v. Commissioner,

docket No. 12813-02S, disputing the adjustments to tax proposed

in the notice of deficiency.     It does not appear that the

purported signature of petitioner on the petition was made by her

hand.    An amended petition for Thomas and petitioner was

subsequently filed with a signature that does not appear to have

been made by petitioner.     Thomas provided to respondent a

stipulation of settled issues that contains petitioner’s

purported signature.

     Petitioner did sign, along with Thomas, a stipulated

decision settling the case on May 29, 2003.     The stipulated

decision did not provide for relief to petitioner from joint and

several liability for 1999.
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     Four months after the Court entered the decision in the

deficiency action filed in the name of Thomas and petitioner,

petitioner filed a Form 8857 requesting relief for 1999.

     On March 28, 2003, Circuit Judge Stanley J. Latreille of the

State of Michigan issued in favor of petitioner, and against

Thomas, an ex parte personal protection order that remains in

effect.

                             Discussion

Res Judicata

     Respondent has moved for summary judgment because of the

prior decision entered in the deficiency action brought by

petitioner and Thomas.   Respondent asks the Court to find that,

as a matter of law, petitioner is precluded from seeking relief

in this Court under section 6015 due to the judicial doctrine of

res judicata.

     Under the doctrine of res judicata, when a court of

competent jurisdiction has entered a final judgment on the merits

in a cause of action, the parties to the action and those in

privity with them are bound as to every matter that was offered

and as to every matter that might have been offered in defense or

pursuit of the claim.    Commissioner v. Sunnen, 333 U.S. 591, 597

(1948).

     As a general rule, where the Tax Court has entered a

decision for a taxable year, both the taxpayer and the
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Commissioner (with certain exceptions) are barred from reopening

that year.    Hemmings v. Commissioner, 104 T.C. 221, 233 (1995).

It has also been held that “the Tax Court’s jurisdiction, once it

attaches, extends to the entire subject of the correct tax for

the particular year.”    Erickson v. United States, 159 Ct. Cl.

202, 309 F.2d 760, 767 (1962).

     An agreed or stipulated judgment is a judgment on the merits

for purposes of res judicata.     In re Baker, 74 F.3d 906, 910 (9th

Cir. 1996); accord Erickson v. United States, supra at 768;

Krueger v. Commissioner, 48 T.C. 824, 828-829 (1967); see also

United States v. Intl. Bldg. Co., 345 U.S. 502, 503-506 (1953)

(upholding res judicata effect of stipulated Tax Court

decisions).

     Respondent argues that since petitioner could have claimed

the benefits of section 6015 in the deficiency action for 1999

but did not, she is precluded from litigating the issue for 1999

in another action.   Respondent recognizes the exception to the

judicial doctrine of res judicata provided for in section

6015(g)(2) where the individual did not participate meaningfully

in the prior proceeding.   See Thurner v. Commissioner, 121 T.C.

43, 50 (2003); Vetrano v. Commissioner, 116 T.C. 272, 280 (2001).

But respondent argues that the facts show that petitioner did

meaningfully participate in the prior action and therefore does

not qualify for the exception.
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     Petitioner appeared at the hearing on respondent’s motion.

She testified that she was unaware of the tax case for 1999 until

she was called by Thomas who informed her that she had to go to

the Internal Revenue Service (IRS) office “that day” to sign the

decision document.   She testified that she was unrepresented and

did not have time to prepare.   She spoke with the IRS attorney,

she stated, who informed her that he was not her attorney and

could not give her legal advice.   She testified that she was and

presently is afraid of reprisal from her former husband should

she challenge the settlement.   Further, she said that she thought

she could sign the decision document and nevertheless institute a

later action under section 6015.

Standard for Granting Summary Judgment

     The standard for granting a motion for summary judgment

under Rule 121 is stated in the Rule itself.

     A decision shall * * * be rendered if the pleadings,
     answers to interrogatories, depositions, admissions,
     and any other acceptable materials, together with the
     affidavits, if any, show that there is no genuine issue
     as to any material fact and that a decision may be
     rendered as a matter of law. * * * [Rule 121(b).1]


     The moving party has the burden of “showing” the absence of

a genuine issue as to any material fact.   See Espinoza v.


     1
      Rule 121 is derived from Fed. R. Civ. Proc. 56. Therefore,
authorities interpreting the latter will be considered by the
Court in applying the Rule. Espinoza v. Commissioner, 78 T.C.
412, 415-416 (1982).
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Commissioner, 78 T.C. 412, 416 (1982) (and cases cited therein.)

The evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his favor.       Adickes v.

S.H. Kress & Co., 398 U.S. 144, 158-159 (1970).      There is,

however, no issue for trial unless there is sufficient evidence

favoring the nonmoving party for the finder of fact to find in

favor of the nonmoving party.     First Natl. Bank v. Cities Serv.

Co., 391 U.S. 253, 288-289 (1968).       The nonmovant’s evidence must

be more than merely colorable. Dombrowski v. Eastland, 387 U.S.

82, 84 (1967) (per curiam).

     In this case, respondent seems to believe that factual

ambiguities in the record require a decision in his favor on this

motion.   When considering a motion for summary judgment, however,

“the judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.”     Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986); accord Shiosaki v. Commissioner, 61

T.C. 861, 862 (1974).

     In Thurner v. Commissioner, supra at 53, a case cited by

respondent in his memorandum of authorities, a petitioning spouse

claimed that her participation in the prior litigation was not

material in that it was limited to signing pleadings and

documents in compliance with her husband’s instructions.      The

Court held that the allegation “raises an issue of material fact
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as to her level of participation in that proceeding.”     The Court

denied the Commissioner’s motion for summary judgment.     In this

case, there is more than just petitioner’s testimony.     She has

also offered evidence that at the time she signed the decision

document there was a protective order in effect against her

former husband, and there is evidence that she did not sign

either the petition or the amended petition in the prior case.

     Respondent has neither produced evidence negating an

essential element of petitioner’s case, nor has he shown a

“complete failure of proof” in the record on an essential element

of petitioner’s case.   Respondent has failed to make the initial

showing required by Rule 121(b) and Celotex Corp. v. Catrett, 477

U.S. 317 (1986).   The Court, as a result, finds that respondent

has failed to show that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law that petitioner is barred by the doctrine of res judicata

from pursuing relief under section 6015.     The Court therefore

denies respondent’s motion for summary judgment.


                                            An appropriate order

                                       will be issued.
