                     T.C. Summary Opinion 2009-67



                        UNITED STATES TAX COURT



                     SARAH MARQUEZ, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 12917-05S.            Filed May 7, 2009.



        Sarah Marquez, pro se.

        Stephen R. Doroghazi, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.     Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.     Unless otherwise indicated, subsequent section references
                               - 2 -

are to the Internal Revenue Code as amended, and all Rule

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

     The issue for decision is whether petitioner is entitled to

relief from joint and several liability under section 6015(f) for

2000.1

                            Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    When the petition was

filed, petitioner resided in Florida.

     Petitioner married Neil Peiman (Mr. Peiman) in February

1999; the marriage produced one child.    During their marriage

they operated or held interests in several entities:    (1) 4G

Trading, Inc. (4G Trading), a day trading company, which was

operated by Mr. Peiman and another associate; (2) Star Millennium

Group, Inc. (Star Millennium), a real estate holding company, of

which petitioner and Mr. Peiman served as officers and directors;

(3) NLS Enterprises, Inc. (NLS), a holding company for

investments, of which petitioner and Mr. Peiman served as

officers; and (4) “IAG”, a regional Internet service provider,

owned by Mr. Peiman.   Petitioner was also actively involved in



     1
      Petitioner’s former husband, Neil Peiman, was notified that
petitioner was seeking relief from joint and several liability
and that he had a right to intervene in the matter. He has not
exercised his right to intervene.
                               - 3 -

the accounting functions of IAG, NLS, and Star Millennium, but

she was not actively involved in the accounting functions of 4G

Trading.

     In June 1999 Mr. Peiman sold IAG for cash and stock of “One

Main”.   Petitioner was not an owner of, officer of, or otherwise

involved with One Main before or after the takeover of IAG.     The

sale proceeds Mr. Peiman received “went into an account by the

name of BT Alex Brown.”   Petitioner did not have access to nor

was she a signatory on the BT Alex Brown account.   She did not

know how much money Mr. Peiman held in the BT Alex Brown account.

Whenever petitioner told Mr. Peiman that she needed money, he

would “just write a check out of the BT Alex Brown account” and

deposit it into their joint account.   She used the joint account

to pay their household expenses.

     In May 2001 petitioner and Mr. Peiman separated.   They filed

a joint Form 1040, U.S. Individual Income Tax Return, for 2000 in

September 2001 pursuant to extensions.   A certified public

accountant (C.P.A.) prepared the Form 1040.   They reported

petitioner’s wages of $11,000, interest income of $5,464,

ordinary dividends of $1,379, a loss of $13,403 from their three

S corporations (4G Trading, NLS, and Star Millennium),2 and a

capital gain of $537,593.   The capital gain consisted of various



     2
      Petitioner provided the source information for the S
corporations’ returns to their C.P.A.
                               - 4 -

gains and losses from sales of stock, including Mr. Peiman’s

liquidation of the One Main stock he received from the IAG

takeover as “the restrictions came off”, and $73,870 in cash

proceeds from the takeover of IAG that Mr. Peiman received in

2000 and reported as income under the installment method.     The

Form 1040 reported a $101,739 tax liability and total payments of

$27,6833 for a $79,368 balance due.

     Sometime in 2001 Mr. Peiman moved to Costa Rica.     When

petitioner traveled to meet Mr. Peiman in Costa Rica, he greeted

her with divorce papers “the minute [she] stepped off the plane.”

Although petitioner and Mr. Peiman divorced in March 2003, they

filed a joint return for 2002, which was prepared by their C.P.A.

The C.P.A. also prepared a Form 1040X, Amended U.S. Individual

Income Tax Return, for 2000 that petitioner picked up from the

C.P.A.   The 2000 Form 1040X made certain revisions to petitioner

and Mr. Peiman’s adjusted gross income, itemized deductions,

taxable income, and their tax liability on account of a net

operating loss carryback for 2002.     In addition, the 2000 Form

1040X reported a tax liability of $98,146 and total payments

$84,1874 for a $13,959 balance due.


     3
      The payments consist of withholdings of $2,683 and an
amount “paid with request for extension to file” of $25,000.
     4
      The payments consist of withholdings of $2,683, an amount
“paid with request for extension to file” of $25,000, and an
amount of “tax paid with original return plus additional tax paid
                                                   (continued...)
                                 - 5 -

         In December 2003 the Internal Revenue Service (IRS) sent

petitioner and Mr. Peiman notices of intent to levy, but the

notices were returned as refused or unclaimed.5    In March 2004

petitioner requested relief from joint and several liability

under section 6015(f) by filing a Form 8857, Request for Innocent

Spouse Relief (And Separation of Liability and Equitable Relief),

and a Form 12510, Questionnaire for Requesting Spouse (discussed

infra).     In September 2004 she filed a Form 12509, Statement of

Disagreement.6    In her Form 12509 she asserts that she did not

have income in 2000 and the 2000 tax liability derived from the

sale of Mr. Peiman’s business.     She also claims that she did not

have access to IRS notices.     And according to petitioner, she

receives no financial support from Mr. Peiman and is completely

penniless and without assets.

     The IRS issued a final notice to petitioner in April 2005.

The IRS denied petitioner’s request for relief from joint and

several liability.     The IRS determined that she had knowledge of

the liability and did not establish a belief that the tax would

be paid within a reasonable time.     According to the IRS,


     4
      (...continued)
after it was filed” of $56,504.
     5
      The IRS also sent petitioner and Mr. Peiman notices of
intent to levy in February 2004, but the notices were returned as
refused or unclaimed.
     6
      The IRS’s preliminary determination was not submitted to
the Court as part of the record.
                                 - 6 -

petitioner failed to submit her divorce decree or indicate how

her bills were being paid.

      Thereafter, petitioner filed a timely petition with the

Court.   In her petition she asserts that she had no income for

2000 and did not have access to financial information since she

and Mr. Peiman were separated.    She also claims that she had no

knowledge of whether the tax would be paid.       According to

petitioner, she receives no financial support from Mr. Peiman and

“imposing this debt on [her] would cause [her] great economic

hardship.”   As of October 30, 2006, petitioner and Mr. Peiman’s

account balance was $19,087.38.

                             Discussion

I.   Joint and Several Liability and Section 6015(f) Relief

      Section 6013(d)(3) provides that if a joint return is filed,

the tax is computed on the taxpayers’ aggregate income, and

liability for the resulting tax is joint and several.       See also

sec. 1.6013-4(b), Income Tax Regs.       But the IRS may relieve a

taxpayer from joint and several liability under section 6015(f)

if, taking into account all the facts and circumstances, it is

inequitable to hold the taxpayer liable for any unpaid tax or

deficiency and the taxpayer does not qualify for relief under

section 6015(b) or (c).   Except as otherwise provided in section

6015, the taxpayer bears the burden of proof.       See Rule 142(a);
                                - 7 -

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

Appx. 34 (6th Cir. 2004).

       The Commissioner has issued revenue procedures to guide IRS

employees in determining whether a requesting spouse is entitled

to relief from joint and several liability.     See Rev. Proc.

2003-61, 2003-2 C.B. 296, modifying and superseding Rev. Proc.

2000-15, 2000-1 C.B. 447.    Rev. Proc. 2003-61, supra, lists the

factors that IRS employees should consider, and the Court also

uses the factors when reviewing the IRS’s denial of relief.      See

Washington v. Commissioner, 120 T.C. 137, 147-152 (2003).

II.    Rev. Proc. 2003-61, Sec. 4.01:    Seven Threshold Conditions
       for Relief

       Rev. Proc. 2003-61, sec. 4.01, 2003-2 C.B. at 297, begins

with a list of seven threshold conditions that a taxpayer must

satisfy in order to qualify for equitable relief.      The Court will

not recite them.    Respondent concedes that petitioner satisfies

the threshold requirements.

III.    Rev. Proc. 2003-61, Sec. 4.02:   Circumstances Ordinarily
        Allowing for Relief

       Where the requesting spouse satisfies the threshold

conditions of Rev. Proc. 2003-61, sec. 4.01, then Rev. Proc.

2003-61, sec. 4.02, 2003-2 C.B. at 298, sets forth the

circumstances in which the IRS will ordinarily grant relief under

section 6015(f) for an underpayment of a properly reported

liability.    To qualify for relief under Rev. Proc. 2003-61, sec.
                                - 8 -

4.02, the requesting spouse must:    (1) No longer be married to,

be legally separated from, or have not been a member of the same

household as the nonrequesting spouse at any time during the

12-month period ending on the date of the request for relief;

(2) have had no knowledge or reason to know when the return was

signed that the nonrequesting spouse would not pay the tax

liability; and (3) suffer economic hardship if relief is not

granted.

     Petitioner was divorced from Mr. Peiman when she requested

relief.    The first requirement is satisfied.

     In the case of a reported but unpaid liability, the relevant

knowledge is whether the taxpayer knew or had reason to know when

the return was signed that the tax would not be paid.    Washington

v. Commissioner, supra at 151; Feldman v. Commissioner, T.C.

Memo. 2003-201, affd. 152 Fed. Appx. 622 (9th Cir. 2005).    The

general rule for unpaid liabilities is that the requesting spouse

must establish that:    (1) When the requesting spouse signed the

return, the requesting spouse had no knowledge or reason to know

that the tax reported on the return would not be paid; and (2) it

was reasonable for the requesting spouse to believe that the

nonrequesting spouse would pay the tax shown due.    Morello v.

Commissioner, T.C. Memo. 2004-181; Ogonoski v. Commissioner, T.C.

Memo. 2004-52; Collier v. Commissioner, T.C. Memo. 2002-144.
                                - 9 -

     In petitioner’s Form 12510, she asserts that she was not

involved in the preparation of the Forms 1040 and 1040X because a

C.P.A. prepared them and she did not review the Forms 1040 and

1040X because they were too complicated.   She also claims that

she did not assist Mr. Peiman with his business, and she had only

minor business experience.   She also claims that she knew a

balance was due and just assumed the tax would be paid.   And she

did not know how much money Mr. Peiman had in his BT Alex Brown

account or what funds were available to pay the tax.   She also

did not know what efforts she or Mr. Peiman made to pay the tax

after the returns were filed.   She adds that she knew that they

were having financial problems at the time the return was filed

due to a “child custody fight” with Mr. Peiman’s ex-spouse.

According to petitioner, she had full access to a joint account

from which she wrote checks to pay their household expenses.     But

she did not review the monthly bank statements, balance the

checkbook, or open their household mail.   Finally, she claims

that Mr. Peiman held a separate account with respect to the

takeover of IAG to which she did not have access and from which

he transferred funds into their joint account.

     At trial petitioner testified that she did not review the

Form 1040, and she was not able to look at the “taxes and * * *

figure out what all of [it] was.”   She also testified that she

went with Mr. Peiman to the post office to mail the Form 1040.
                              - 10 -

But she just assumed that Mr. Peiman had enclosed a payment for

their tax liability because he said he did.

     Generally, it is permissible to consider the complexity of

the nonrequesting spouse’s financial or business affairs in

determining whether the requesting spouse knew or had reason to

know of the underpayment.   Compare Sanders v. United States, 509

F.2d 162, 169-170 (5th Cir. 1975) (complexity is a “permissible

consideration”), with McCoy v. Commissioner, 57 T.C. 732, 734

(1972) (lack of knowledge predicated on mere ignorance of the tax

consequences is not a defense where the facts are within the

requesting spouse’s possession or reasonably within reach), and

Beatty v. Commissioner, T.C. Memo. 2007-167 (taxpayer would not

have understood the reported information that was attributable to

her husband and his business of which she had no knowledge).

     Although petitioner only has a high school education, she

was the president and registered agent of NLS and an officer and

director of Star Millennium during 2000.   In addition, Mr. Peiman

“delegated most of that stuff”, e.g., bookkeeping, accounting,

and bank reconciliation of these entities, to petitioner.   Their

C.P.A. would ask petitioner for information about cash account

balances, bank reconciliation, check coding, reconciliation of

accounts receivable balances, and etc., while he prepared the

various income tax returns and schedules of NLS and Star
                               - 11 -

Millennium.   She was also employed by IAG and was actively

involved in its accounting functions.

     The record therefore supports an inference that petitioner

was quite sophisticated with respect to the issues pertaining to

her and Mr. Peiman’s various tax matters.   The Court therefore

does not give much weight to petitioner’s claims that she did not

review their Forms 1040 and 1040X because they were too complex

and that she did not have much business experience.   The Court

finds that the complexity of petitioner and Mr. Peiman’s Forms

1040 and 1040X and her purported lack of business experience do

not excuse petitioner’s failure to exercise her duty of inquiry.

     Petitioner was also actively involved in the household’s

finances:   she had full access to a joint account from which she

wrote checks to pay their household expenses.   And she “monitored

the account to know what was in there and when money was needed”,

notwithstanding her claims that she did not review their monthly

bank statements, balance their checkbook, or open their household

mail.

     Arguably, Mr. Peiman might have been evasive or deceitful

because he told petitioner that he had enclosed a payment for

their 2000 tax liability with their Form 1040 but did not and he

held money in the BT Alex Brown account, the amount of which

petitioner had no knowledge.   Compare Jonson v. Commissioner, 118

T.C. 106, 119-120 (2002) (relief unavailable where requesting
                              - 12 -

spouse did not establish that the requesting spouse concealed or

deceived her concerning their financial affairs and she had

access to financial files), affd. 353 F.3d 1181 (10th Cir. 2003),

with Albin v. Commissioner, T.C. Memo. 2004-230 (and cases cited

therein).   But Mr. Peiman was not otherwise evasive or deceitful

about their business or personal affairs or about the fact that

their Forms 1040 and 1040X showed a balance due.   Indeed,

petitioner was quite aware of these issues, yet she would have

the Court believe that she placed blind faith in and deferred to

Mr. Peiman to pay the 2000 tax liability without any inquiry into

its payment.

     Inquiry by petitioner was essential in view of her

admissions that she:   (1) Knew their Forms 1040 and 1040X showed

a balance due; (2) did not know how much money was in the BT Alex

Brown account; (3) did not know what money was available to pay

their 2000 tax liability; and (4) knew they were having financial

difficulties on account of Mr. Peiman’s child custody issues.

See, e.g., Stolkin v. Commissioner, T.C. Memo. 2008-211 (the

Court has consistently found that a requesting spouse’s knowledge

of their financial difficulties deprives the requesting spouse of

reason to believe that the nonrequesting spouse will pay the tax

liability).

     Moreover, the record supports an inference that petitioner

might have been aware that Mr. Peiman had a habit or practice of
                               - 13 -

skirting some of his financial responsibilities.        Indeed, at

trial she asked their C.P.A. whether he was aware that:        (1) Mr.

Peiman had tax issues in the past; (2) Mr. Peiman had a payment

plan “in the 90’s with the [IRS]”; (3) NLS was created to shield

assets from Mr. Peiman’s ex-spouse; and (4) Mr. Peiman moved to

Costa Rica to hide or shield assets from Mr. Peiman’s ex-spouse.

Apparently, red flags were flying, but petitioner failed to heed

the warnings and abdicated her duty of inquiry.

       Upon the basis of the foregoing, the Court finds that

petitioner has not proven that she did not know or have reason to

know when she signed their Forms 1040 and 1040X that the balance

shown as due would not be paid.    Petitioner is not entitled to

relief under Rev. Proc. 2003-61, sec. 4.02, and the Court need

not discuss the third requirement.

IV.    Rev. Proc. 2003-61, Sec. 4.03:   Other Factors

       Where the requesting spouse fails to qualify for relief

under Rev. Proc. 2003-61, sec. 4.02, the IRS may nevertheless

grant relief under Rev. Proc. 2003-61, sec. 4.03, 2003-2 C.B. at

298.    The Court’s analysis with respect to the nonexhaustive list

of factors contained in Rev. Proc. 2003-61, sec. 4.03 is

described below.
                                 - 14 -

     A.    Marital Status

     The IRS will take into consideration whether the requesting

spouse is divorced or separated from the nonrequesting spouse.

Rev. Proc. 2003-61, sec. 4.03(2)(a)(i), 2003-2 C.B. at 298.

     Petitioner was divorced from Mr. Peiman when she filed her

request.    This factor weighs in favor of relief.    See McKnight v.

Commissioner, T.C. Memo. 2006-155 (divorce weighs in favor of

relief under Rev. Proc. 2003-61); cf. Butner v. Commissioner,

T.C. Memo. 2007-136 (same under Rev. Proc. 2000-15).

     B.    Economic Hardship

     The IRS will take into consideration whether the requesting

spouse will suffer economic hardship if relief is not granted.

Rev. Proc. 2003-61, sec. 4.03(2)(a)(ii), 2003-2 C.B. at 298.

Generally, economic hardship exists if collection of the tax

liability will cause the taxpayer to be unable to pay reasonable

basic living expenses.      Butner v. Commissioner, supra.   In

determining a reasonable amount for basic living expenses, the

Court considers, among other things:      (1) The taxpayer’s age,

employment status and history, ability to earn, and number of

dependents; (2) an amount reasonably necessary for food,

clothing, housing, medical expenses, transportation, current tax

payments, and expenses necessary to the taxpayer’s production of

income; (3) the cost of living in the taxpayer’s geographic area;

(4) the amount of property available to satisfy the taxpayer’s
                               - 15 -

expenses; (5) any extraordinary circumstances; e.g., special

education expenses, a medical catastrophe, or a natural disaster;

and (6) any other factor bearing on economic hardship.   Sec.

301.6343-1(b)(4)(ii), Proced. & Admin. Regs.

     The IRS has issued guidelines for allowable expenses.7

“Necessary expenses are those that meet the necessary expense

test; i.e., ‘they must provide for a taxpayer’s and his or her

family’s health and welfare and/or the production of income’ and

they must be reasonable.”   Schulman v. Commissioner, T.C. Memo.

2002-129 n.6.   There are three types of necessary expenses:

(1) Those based on national standards; e.g., food, housekeeping

supplies, clothing, and personal care products and services;

(2) those based on local standards; e.g., housing, utilities, and

transportation; and (3) other expenses, which are not based on

national or local standards.   Id.

     Except as otherwise noted, petitioner has not substantiated

her basic living expenses; e.g., by providing receipts or

statements.   Accordingly, the Court will use the following

amounts in its analysis of petitioner’s claim of economic

hardship:




     7
      The guidelines are published on the IRS’s Web site at
http://www.irs.gov/individuals/article/0,,id=96543,00.html (last
visited May 1, 2009). The amount listed as the national or local
standard is effective as of Mar. 1, 2009.
                              - 16 -

                Expenditure               Amount Allowed
                                             1
          Housing & utilities                 $1,581
                                                2
          Auto                                    561
                                                3
          Food                                    537
                                                  3
          Housekeeping supplies                     66
                                                3
          Apparel & services                      162
          Personal care products
                                                      3
            & services                              55
                                                  3
          Miscellaneous                            165
            Total                                3,127
     1
      Based on the local standard for a two-person family.
     2
      Petitioner’s actual payment of $360 per month plus the
     local operating standard of $201 per month for a single
     taxpayer with one car. Although petitioner’s credit report
     shows that she has another automobile lease payment of $332
     per month, she has not proven that the second automobile is
     a necessary expense.
     3
      Based on the national standard for a two-person family.

     Petitioner claims (unsubstantiated) wages of $1,277.76 per

month on her Form 12510.   Thus, it appears that imposing the tax

liability on petitioner would cause her an economic hardship

since her allowable monthly expenses exceed her wages by

$1,849.24.   Additionally, her credit report shows that she is

indebted to the extent of $250,543.    But she has not

substantiated her wages or proven the value of her assets that

could be used to satisfy her liability, such as the equity in her

condo that she “left” to her stepdaughter, the value of her

interests in her corporations, if any, or the value of any claims

she might have against Mr. Peiman for alimony or child support.

Further she supports only one child, is in her midthirties, and

is gainfully employed as a branch manager at a bank, making
                               - 17 -

$54,000 per year.   The Court therefore finds that petitioner has

not proven that she will suffer economic hardship if relief is

not granted.8   See Monsour v. Commissioner, T.C. Memo. 2004-190

(requesting spouse must prove that the expenses qualify and that

they are reasonable).    This factor weighs against granting

relief.   See Banderas v. Commissioner, T.C. Memo. 2007-129 (lack

of economic hardship weighs against relief under Rev. Proc.

2003-61); cf. Butner v. Commissioner, supra (same under Rev.

Proc. 2000-15).

     C.   Knowledge or Reason To Know

     The IRS will consider whether the requesting spouse did not

know or had no reason to know that the nonrequesting spouse would

not pay the liability.    Rev. Proc. 2003-61, sec.

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

     Petitioner has failed to establish that she did not know or

have reason to know when the Forms 1040 and 1040X were filed that

the tax liability would not be paid.    See supra pp. 10-13.   This

factor weighs against granting relief.    See Beatty v.

Commissioner, T.C. Memo. 2007-167 (knowledge or reason to know

weighs against relief under Rev. Proc. 2003-61); cf. Levy v.

Commissioner, T.C. Memo. 2005-92 (same under Rev. Proc. 2000-15).




     8
      The Court also notes that petitioner took her child to
China for a vacation in 2008 despite her claim that imposing the
tax liability on her would cause her to suffer economic hardship.
                                - 18 -

     D.   Nonrequesting Spouse’s Legal Obligation

     The IRS will consider whether the nonrequesting spouse has a

legal obligation to pay the outstanding tax liability pursuant to

a divorce decree or agreement.    Rev. Proc. 2003-61, sec.

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

     There is no evidence in the record of a divorce decree or

agreement showing that the unpaid tax liability was the legal

obligation of Mr. Peiman.   Therefore, this factor is neutral.

See Magee v. Commissioner, T.C. Memo. 2005-263 (applying Rev.

Proc. 2003-61); cf. Butner v. Commissioner, T.C. Memo. 2007-136

(applying Rev. Proc. 2000-15).

     E.   Significant Benefit

     The IRS will consider whether the requesting spouse received

any significant benefit beyond normal support as a result of the

unpaid tax liability.   Rev. Proc. 2003-61, sec. 4.03(2)(a)(v),

2003-2 C.B. at 299.

     There is nothing indicating that petitioner received any

significant benefit from her and Mr. Peiman’s unpaid tax

liability.   Therefore, this factor weighs in favor of relief.

See Magee v. Commissioner, supra (lack of significant benefit

weighs in favor of relief under Rev. Proc. 2003-61); cf. Butner

v. Commissioner, supra (lack of significant benefit weighed in

favor of relief under former section 6013(e) notwithstanding that

Rev. Proc. 2000-15 states that it is neutral).
                                - 19 -

     F.   Compliance With Federal Tax Laws

     The IRS will take into consideration whether the requesting

spouse has made a good faith effort to comply with the Federal

income tax laws in succeeding years.       Rev. Proc. 2003-61, sec.

4.03(2)(a)(vi), 2003-2 C.B. at 299.

     Respondent agrees that petitioner has complied with the

Federal income tax laws.    This factor weighs in favor of relief.

See Fox v. Commissioner, T.C. Memo. 2006-22 (noncompliance weighs

against relief under Rev. Proc. 2003-61); cf. Butner v.

Commissioner, supra (same under Rev. Proc. 2000-15).

     G.   Abuse

     The IRS will consider whether the nonrequesting spouse

abused the requesting spouse.    Rev. Proc. 2003-61, sec.

4.03(2)(b)(i), 2003-2 C.B. at 299.       The presence of abuse is a

factor favoring relief, and a history of abuse may mitigate the

requesting spouse’s knowledge or reason to know.       Id.

     In both Forms 8857 and 12510 petitioner claimed that she was

not abused by Mr. Peiman.   But in petitioner’s pretrial

memorandum she claimed that she was abused by Mr. Peiman in that:

(1) When Mr. Peiman saw that he was going to lose her, he trapped

her; (2) she could not leave because she would be alienated from

her finances and knowledge of their assets; and (3) when she

“still wanted to leave” Mr. Peiman tricked her into traveling to

Costa Rica for the purpose of divorcing her and leaving her with
                               - 20 -

nothing.   At trial she testified that she was not physically

abused, but “there was abuse in the marriage to the extent that

she could not leave” because she would be alienated from their

finances and knowledge of their assets.

     The Court is skeptical that petitioner’s purported abuse

falls within the definition of or rises to the level of abuse

contemplated by the Federal income tax laws.   See Nihiser v.

Commissioner, T.C. Memo. 2008-135, for an extensive discussion of

the abuse factor.    The Court, however, need not decide the issue

because the Court accords little weight to petitioner’s

subsequent inconsistent statements about her purported abuse.

See Sundel v. Commissioner, T.C. Memo. 1998-78 (and cases cited

therein), affd. without published opinion 201 F.3d 428 (1st Cir.

1999); McGirl v. Commissioner, T.C. Memo. 1996-313, affd. without

published opinion 131 F.3d 143 (8th Cir. 1997).   Therefore, this

factor is neutral.    See Magee v. Commissioner, supra (lack of

abuse is a neutral factor under Rev. Proc. 2003-61); cf. Butner

v. Commissioner, supra (same under Rev. Proc. 2000-15).

     H.    Mental or Physical Health

     The IRS will take into consideration whether the requesting

spouse was in poor mental or physical health on the date she

signed the return or at the time relief was requested.    Rev.

Proc. 2003-61, sec. 4.03(2)(b)(ii), 2003-2 C.B. at 299.
                              - 21 -

     There is no evidence in the record that petitioner’s mental

or physical health was poor; therefore, this factor is neutral.

See id.; see also Magee v. Commissioner, supra.

Conclusion:   Weight of the Factors

     Three factors weigh in favor of relief, two factors weigh

against relief, and three factors are neutral.     Although the

decision is close, the Court concludes that the Appeals officer

did not err in concluding that petitioner is not entitled to

relief from joint and several liability under section 6015(f).

See Porter v. Commissioner, 132 T.C. __ (2009).    Respondent’s

determination is therefore sustained.

     To reflect the foregoing,


                                          Decision will be entered

                                      for respondent.
