                                               AUDREY MARIE HALL, PETITIONER v. COMMISSIONER
                                                     OF INTERNAL REVENUE, RESPONDENT

                                                        Docket No. 30685–08.               Filed September 22, 2010.

                                                  The parties have entered into a stipulation that P is enti-
                                               tled to relief under sec. 6015(f), I.R.C., but for the 2-year
                                               limitation for claiming such relief under sec. 1.6015–5(b)(1),
                                               Income Tax Regs. We must decide whether we will follow
                                               Lantz v. Commissioner, 607 F.3d 479 (7th Cir. 2010), revg.
                                               132 T.C. 131 (2009), in jurisdictions other than the Seventh
                                               Circuit. The present case would normally be appealed to the
                                               Court of Appeals for the Sixth Circuit. Held: We will continue
                                               to take the position that sec. 1.6015–5(b)(1), Income Tax
                                               Regs., is an invalid interpretation of sec. 6015(f), I.R.C.

                                           Ljubomir Nacev, for petitioner.
                                           Emily J. Giometti, for respondent.
                                                                                   OPINION

                                        GOEKE, Judge: This case is before the Court on petitioner’s
                                      request for relief under section 6015(f).1 We have jurisdiction
                                      under section 6015(e).
                                        The specific issue is whether petitioner is entitled to equi-
                                      table relief under section 6015(f), notwithstanding her failure
                                      to request such relief before the 2-year deadline imposed by
                                      section 1.6015–5(b)(1), Income Tax Regs.

                                                                                Background
                                         The facts have been stipulated and are so found.
                                         At the time of filing the petition, petitioner resided in Cin-
                                      cinnati, Ohio. Petitioner and Etheridge Hall (Mr. Hall) were
                                      married on October 9, 1965. Petitioner and Mr. Hall filed
                                      joint Federal income tax returns for the tax years 1998 and
                                      2001 (the years in issue). For the year 1998 petitioner
                                      and Mr. Hall included a payment with their return but did
                                      not pay the full amount due. For the year 2001 petitioner
                                        1 Unless otherwise noted, all section references are to the Internal Revenue Code in effect at

                                      all relevant times.


                                      374




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                                      and Mr. Hall filed a return but did not pay any of the
                                      amount due. However, since the filing of their 2001 return,
                                      petitioner and Mr. Hall made several payments for the tax
                                      year 2001, and the Internal Revenue Service (IRS) applied
                                      several credits to their account.
                                         On April 17, 2003, petitioner and Mr. Hall divorced. Pursu-
                                      ant to their divorce decree, Mr. Hall had a legal obligation
                                      to pay his and petitioner’s joint income tax liabilities. How-
                                      ever, petitioner did not know at the time she filed her joint
                                      returns for the years at issue whether Mr. Hall would pay
                                      the tax due for said years.
                                         On July 6, 2004, respondent initiated collection activity
                                      against petitioner and Mr. Hall’s outstanding tax liabilities
                                      for the years 1998 and 2001 by issuing an intent to levy notice.
                                         On August 1, 2008, petitioner signed and submitted to
                                      respondent Form 8857, Request for Innocent Spouse Relief,
                                      for her 1998 and 2001 tax years. On August 14, 2008, the IRS
                                      issued a preliminary determination denying petitioner relief
                                      under section 6015(f) for the years in issue because peti-
                                      tioner’s claim was not filed within the 2-year period. On or
                                      about August 22, 2008, petitioner filed a Form 12509, State-
                                      ment of Disagreement, protesting the IRS’ denial of innocent
                                      spouse relief and stating that she was not aware that collec-
                                      tion activity had been initiated against her. In addition, peti-
                                      tioner stated in her Form 12509 that the ‘‘statements’’ she
                                      had received ‘‘always had on the statement * * * [that] I had
                                      two years to call. * * * If your [sic] telling me I [was] sup-
                                      pose to do this last year, I’m still receiving statements saying
                                      I still have two years. Could you explain this please.’’
                                         By letter dated September 10, 2008, respondent’s Appeals
                                      Office acknowledged receipt of petitioner’s case for consider-
                                      ation and informed petitioner of the Appeals officer assigned
                                      to it.
                                         On November 17, 2008, the Appeals officer held a con-
                                      ference with petitioner at which she was informed that the
                                      IRS could not grant her relief because she had not timely filed
                                      her request. The Appeals officer explained that the IRS had
                                      issued a collection notice to her on July 6, 2004, and peti-
                                      tioner was required to file a Form 8857 by July 6, 2006; the
                                      Form 8857 was received on July 31, 2008, making the
                                      request untimely. On November 20, 2008, respondent issued
                                      a final Appeals determination denying petitioner relief from




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                                      376                135 UNITED STATES TAX COURT REPORTS                                       (374)


                                      joint and several liability under section 6015(f) for the years
                                      at issue.
                                         On December 22, 2008, petitioner timely petitioned this
                                      Court, contesting respondent’s denial of relief.
                                         On November 5, 2009, respondent sent petitioner’s case to
                                      the Cincinnati Centralized Innocent Spouse Operations Unit
                                      to reconsider the merits of her request. The result was again
                                      denial of relief. However, in a stipulation of settled issues,
                                      dated June 1, 2010, respondent agreed that ‘‘petitioner would
                                      be entitled to equitable relief on the merits’’ if her request
                                      had been timely. Petitioner agreed in the same stipulation of
                                      settled issues that she had submitted her request more than
                                      2 years after collection activities had commenced.

                                                                                Discussion
                                        This case presents the same issue as this Court’s Opinion
                                      in Lantz v. Commissioner, 132 T.C. 131 (2009), revd. 607
                                      F.3d 479 (7th Cir. 2010). In that case this Court held that
                                      the 2-year limitation imposed by section 1.6015–5(b)(1),
                                      Income Tax Regs., is an invalid interpretation of section
                                      6015(f). The Court of Appeals for the Seventh Circuit
                                      reversed this holding, finding that the regulation was within
                                      the Secretary’s discretion to prescribe procedures for the
                                      application of section 6015(f). Appeal of this case would nor-
                                      mally lie to the Court of Appeals for the Sixth Circuit, so the
                                      rule of deference is not applicable. See Golsen v. Commis-
                                      sioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir.
                                      1971). However, given the reversal of Lantz, it is appropriate
                                      that this Court revisit the issue.
                                      I. Seventh Circuit Analysis
                                         The Court of Appeals for the Seventh Circuit in Lantz held
                                      that ‘‘audible silence’’ was not a guide to congressional
                                      meaning because there was nothing unusual in the fact that
                                      Congress chose not to include a statute of limitations in sec-
                                      tion 6015(f). The Court of Appeals noted that courts often
                                      borrow statutes of limitations from other laws and that Con-
                                      gress was aware that agencies often make up their own
                                      deadlines through regulations.
                                         The Court of Appeals also held that while the doctrine of
                                      laches might substitute for the lack of a statute of limitations




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                                      in a situation applying equitable principles, it cannot do so
                                      for section 6015(f). The Court of Appeals reasoned that if sec-
                                      tion 6015(f) has no strict deadline, ‘‘the two-year deadlines in
                                      subsections (b) and (c) will be set largely at naught because
                                      the substantive criteria of those sections are virtually the
                                      same as those of (f).’’ Lantz v. Commissioner, 607 F.3d at
                                      484.
                                         Finally, the Court of Appeals noted that section 6015(f) is
                                      a safety valve by which the IRS may grant relief to a tax-
                                      payer under regulations prescribed by the Secretary. Because
                                      Congress authorized the Secretary to grant discretionary
                                      relief under procedures that the Secretary was to devise, the
                                      court held that judicial deference to the regulation was
                                      required and the Secretary was empowered to set a deadline
                                      for applying for section 6015(f) relief. Id. at 486.
                                         The analysis by the Court of Appeals concluded with the
                                      recognition that the result was ‘‘harsh’’ but suggested Mrs.
                                      Lantz might be provided relief under section 6343(a)(1)(D).
                                      Id.
                                      II. Procedural Rule
                                         In Lantz v. Commissioner, 607 F.3d at 483, the Court of
                                      Appeals recognized that equity traditionally did not include
                                      a strict ‘‘statute of limitations’’; but as stated previously, the
                                      Court of Appeals rejected ‘‘laches’’ as a means to apply sec-
                                      tion 6015(f). Traditionally, in cases of equity there was no
                                      statute of limitations, but delay in filing a claim was consid-
                                      ered as a factor in deciding whether equity would be served
                                      by granting relief. Id. By adopting a statute of limitations,
                                      the Court of Appeals accepted that cases invoking inequi-
                                      table circumstances will be denied relief without considering
                                      the facts and circumstances. The cause of the delay in filing
                                      and the circumstances, no matter how extreme, are irrele-
                                      vant. The Court of Appeals rejected the traditional method to
                                      address delay in the equity context because of subsections (b)
                                      and (c) of section 6015 and the 2-year limitations provision
                                      in those subsections, which it found supports the use of the
                                      2-year standard for subsection (f ). 2
                                           2 Sec.   6015(b), (c), and (f) provides as follows:
                                           SEC. 6015(b). PROCEDURES FOR RELIEF FROM LIABILITY APPLICABLE TO ALL JOINT FILERS.—
                                             (1) IN GENERAL.—Under procedures prescribed by the Secretary, if—
                                                                                                  Continued




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                                               (A) a joint return has been made for a taxable year;
                                               (B) on such return there is an understatement of tax attributable to erroneous items of
                                             one individual filing the joint return;
                                               (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 understatement;
                                               (D) taking into account all the facts and circumstances, it is inequitable to hold the other
                                             individual liable for the deficiency in tax for such taxable year attributable to such under-
                                             statement; 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.
                                             (2) APPORTIONMENT OF RELIEF.—If an individual who, but for paragraph (1)(C), would be
                                           relieved of liability under paragraph (1), establishes that in signing the return such individual
                                           did not know, and had no reason to know, the extent of such understatement, then such indi-
                                           vidual shall be relieved of liability for tax (including interest, penalties, and other amounts)
                                           for such taxable year to the extent that such liability is attributable to the portion of such
                                           understatement of which such individual did not know and had no reason to know.
                                             (3) UNDERSTATEMENT.—For purposes of this subsection, the term ‘‘understatement’’ has the
                                           meaning given to such term by section 6662(d)(2)(A).
                                           SEC. 6015(c). PROCEDURES TO LIMIT LIABILITY FOR TAXPAYERS NO LONGER MARRIED OR TAX-
                                      PAYERS      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 li-
                                           ability for any deficiency which is assessed with respect to the return shall not exceed the
                                           portion of such deficiency properly allocable to the individual under subsection (d).
                                              (2) BURDEN OF PROOF.—Except as provided in individual subparagraph (A)(ii) or (C) of para-
                                           graph (3), each individual who elects the application of this subsection shall have the burden
                                           of proof with respect to establishing the portion of any deficiency allocable to such individual.
                                              (3) ELECTION.—
                                                 (A) INDIVIDUALS ELIGIBLE TO MAKE ELECTION.—
                                                   (i) IN GENERAL.—An individual shall only be eligible to elect the application of this sub-
                                                 section 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 return was filed at any time during the 12-month period ending on
                                                   the date such election is filed.
                                                   (ii) CERTAIN TAXPAYERS INELIGIBLE TO ELECT.—If the Secretary demonstrates that as-
                                                 sets were transferred between individuals filing a joint return as part of a fraudulent
                                                 scheme by such individuals, an election under this subsection by either individual shall
                                                 be invalid (and section 6013(d)(3) shall apply to the joint return).
                                                 (B) TIME FOR ELECTION.—An election under this subsection for any taxable year may be
                                              made at any time after a deficiency for such year is asserted but not later than 2 years
                                              after the date on which the Secretary has begun collection activities with respect to the indi-
                                              vidual making the election.
                                                 (C) ELECTION NOT VALID WITH RESPECT TO CERTAIN DEFICIENCIES.—If the Secretary dem-
                                              onstrates that an individual making an election under this subsection had actual knowl-
                                              edge, at the time such individual signed the return, of any item giving rise to a deficiency
                                              (or portion thereof) which is not allocable to such individual under subsection (d), such elec-
                                              tion shall not apply to such deficiency (or portion). This subparagraph shall not apply where
                                              the individual with actual knowledge establishes that such individual signed the return
                                              under duress.
                                              (4) LIABILITY INCREASED BY REASON OF TRANSFERS OF PROPERTY TO AVOID TAX.—
                                                 (A) IN GENERAL.—Notwithstanding any other provision of this subsection, the portion of




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                                         The Court of Appeals’ application of the 2-year limits in
                                      subsections (b) and (c) makes subsection (f) ineffective in
                                      situations where an innocent spouse is unaware of the need
                                      to or unable to contact the IRS for some of the very reasons
                                      that Congress considered in enacting section 6015. For
                                      example, a spouse is sometimes subject to abuse by a
                                      partner. The abuse can take many forms. Where a spouse is
                                      prevented from acting by fear, intimidation, or fraud, an
                                      administrative procedural hurdle would eliminate consider-
                                      ation of relief by the IRS. The Secretary did not allow any
                                      exception even for extreme cases, but rather adopted a strict
                                      time bar that requires the IRS to deny relief without any
                                      consideration of the facts and circumstances. See sec. 1.6015–
                                      5(b)(1), Income Tax Regs. In our view, a regulation which
                                      rejects claims for relief without considering the facts and cir-
                                      cumstances is contrary to the specific statutory requirement
                                      that all the facts and circumstances be taken into account.
                                      Lantz v. Commissioner, 132 T.C. at 147. We concluded that
                                      the regulation, which bars relief from inequity solely upon
                                      the ground that it was requested beyond a specified period,
                                      failed to consider all the facts and circumstances. Id. at 150.
                                         Respondent contends that this is a procedural rule clearly
                                      within the Secretary’s discretion. However, a time bar is not
                                      simply a procedural rule. In the case of equity, it has the
                                             the deficiency for which the individual electing the application of this subsection is liable
                                             (without regard to this paragraph) shall be increased by the value of any disqualified asset
                                             transferred to the individual.
                                               (B) DISQUALIFIED ASSET.—For purposes of this paragraph—
                                                  (i) IN GENERAL.—The term ‘‘disqualified asset’’ means any property or right to property
                                               transferred to an individual making the election under this subsection with respect to a
                                               joint return by the other individual filing such joint return if the principal purpose of the
                                               transfer was the avoidance of tax or payment of tax.
                                                  (ii) PRESUMPTION.—
                                                     (I) IN GENERAL.—For purposes of clause (i), except as provided in subclause (II), any
                                                  transfer which is made after the date which is 1 year before the date on which the first
                                                  letter of proposed deficiency which allows the taxpayer an opportunity for administra-
                                                  tive review in the Internal Revenue Service Office of Appeals is sent shall be presumed
                                                  to have as its principal purpose the avoidance of tax or payment of tax.
                                                     (II) EXCEPTIONS.—Subclause (I) shall not apply to any transfer pursuant to a decree
                                                  of divorce or separate maintenance or a written instrument incident to such a decree
                                                  or to any transfer which an individual establishes did not have as its principal purpose
                                                  the avoidance of tax or payment of tax.
                                           SEC. 6015(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 individual under subsection (b) or (c),
                                      the Secretary may relieve such individual of such liability.




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                                      substantive effect of making one circumstance, the time of
                                      the claim, the only relevant factor. The statute requires
                                      consideration of all facts and circumstances to decide
                                      whether there is inequity. Sec. 6015(f). Specifying a period
                                      not provided in the statute overrides all the other potential
                                      causes of inequity and is fundamentally inconsistent with the
                                      language and purpose of the statute.
                                      III. Subsection (f) in the Context of Subsections (b) and (c)
                                         The relationship of subsections (b) and (c) to subsection (f)
                                      is fundamental to the issue before us. The Court of Appeals
                                      found that without a 2-year statute of limitations for sub-
                                      section (f), the limitations for subsections (b) and (c) are
                                      made ineffective. Lantz v. Commissioner, 607 F.3d at 484.
                                      Therefore, the Court of Appeals held that silence in sub-
                                      section (f) did not support a different rule but rather that the
                                      context of subsection (f) after subsections (b) and (c) required
                                      the same rule. Id. at 484–485. We believe the Court of
                                      Appeals’ opinion overlooks the very specific and different
                                      purpose of subsection (f). 3
                                         As applied by the IRS in Rev. Proc. 2003–61, 2003–2 C.B.
                                      296, subsection (f) requires a decision about whether col-
                                      lecting a joint liability yields an inequitable result. The rev-
                                      enue procedure and this Court have consistently looked
                                      beyond the taxable year at issue to apply subsection (f). The
                                      facts relevant to subsections (b) and (c) are primarily those
                                      of the taxable year in issue and whether the party claiming
                                      relief is liable for a joint deficiency. In the case of subsection
                                      (f), relief from the deficiency under subsections (b) and (c) is
                                      not available and underpaid taxes already assessed on the
                                      basis of the joint return as filed are possibly subject to relief.
                                      Rev. Proc. 2003–61, secs. 4.01(2), 4.02, 4.03, 2003–2 C.B. at
                                      297–298. While facts from the year the return was filed may
                                      be relevant in applying subsection (f), those facts are not
                                      exclusive. The application of subsection (f) also depends on
                                      current economic hardship and marital circumstances after
                                      the year of the joint liability. Id. sec. 4.03(2)(a)(i) and (ii),
                                      2003–2 C.B. at 298. Such circumstances are to be weighed
                                        3 In an article addressing the question whether the 2-year rule should apply to sec. 6015(f),

                                      Professor Bryan T. Camp argues that subsec. (f) has a different role from that of subsecs. (b)
                                      and (c) and that application of the 2-year rule from subsecs. (b) and (c) to subsec. (f) is not ap-
                                      propriate. Camp, ‘‘Interpreting Statutory Silence’’, 128 Tax Notes 501 (Aug. 2, 2010).




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                                      together with the events during the year in question, and no
                                      one factor is determinative. Id. The consideration of contem-
                                      poraneous circumstances distinguishes subsection (f) analysis
                                      from the taxable year factual analysis required under sub-
                                      sections (b) and (c).
                                      IV. Deference
                                         The IRS, faced with serious budget constraints, must
                                      handle many claims for relief, and we appreciate that some
                                      recognition of the timeliness of claims is necessary. But a
                                      refusal to consider or outline exceptional circumstances runs
                                      squarely contrary to the statutory mandate to prevent
                                      inequity. The need for expediency and the concern with
                                      drafting a rule that reconciles subsections (b), (c), and (f) of
                                      section 6015 effectively are not valid reasons for the Sec-
                                      retary to ignore the statutory mandate to prevent inequity.
                                      The Secretary has wide latitude to implement section 6015(f)
                                      but does not have carte blanche to ignore the purpose and
                                      defeat the application of the section for a substantial number
                                      of otherwise deserving taxpayers.
                                         The Court of Appeals in Lantz v. Commissioner, 607 F.3d
                                      at 485, cites Lopez v. Davis, 531 U.S. 230, 238 (2001), and
                                      asks the rhetorical question:
                                        Since the government can refuse to grant equitable relief to someone
                                      who meets the statutory criteria and applies within two years of the first
                                      collection action, why can’t it decide to deny relief to a class of applicants
                                      defined as those who waited too long? * * *

                                      If we can suggest an answer, it would be to consider two fea-
                                      tures of section 6015 (e) and (f). Section 6015(f) imposes a
                                      requirement that ‘‘all the facts and circumstances’’ be consid-
                                      ered in a determination of whether the collection of the joint
                                      tax liability will result in inequity, and section 6015(e) pro-
                                      vides for judicial review of that determination as a matter of
                                      right. The Secretary has written a regulation that eliminates
                                      consideration of all the facts and circumstances. There is no
                                      doubt there will be situations where denial of an untimely
                                      request will be inequitable because the party seeking relief
                                      was denied access to the necessary information by a mali-
                                      cious or deceitful spouse. As indicated, the IRS recognizes
                                      post-taxable-year facts are relevant under subsection (f) that
                                      are not otherwise relevant under subsections (b) and (c). This




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                                      recognition establishes that insisting on a statute of limita-
                                      tions in subsection (f) based upon subsections (b) and (c) is
                                      a false premise. Congress intended a broader role for sub-
                                      section (f), and the IRS has long recognized this in revenue
                                      procedures. The Court of Appeals’ question and later discus-
                                      sion recognized that harsh and inequitable results are likely
                                      under Lantz. We simply disagree that such results are allow-
                                      able within a reasonable interpretation of the statute and the
                                      related congressional intent.
                                      V. Standard of Review
                                        Applying the law of the Court of Appeals for the Sixth Cir-
                                      cuit, to which an appeal in this case would lie, we must apply
                                      the analysis of Chevron U.S.A. Inc. v. Natural Res. Def.
                                      Council, Inc., 467 U.S. 837, 842–843 (1984), to the regulation
                                      at issue. Hosp. Corp. of Am. & Subs. v. Commissioner, 348
                                      F.3d 136, 140 (6th Cir. 2003), affg. 107 T.C. 73 and 107 T.C.
                                      116 (1996).
                                        For the reasons we stated in Lantz v. Commissioner, 132
                                      T.C. at 137, we hold that section 1.6015–5(b)(1), Income Tax
                                      Regs., fails both prongs of the Chevron test.
                                      VI. Section 6343
                                         With all due respect to the Court of Appeals for the Sev-
                                      enth Circuit’s reference to section 6343(a)(1)(D), that section
                                      was enacted before section 6015(f); and if Congress had found
                                      it sufficient, presumably section 6015(f) would not have been
                                      enacted. One difference is that section 6343(a)(1)(D) may
                                      apply if economic hardship is present; section 6015(f) may
                                      apply on more general equitable grounds. In addition, there
                                      is a practical problem: the Internal Revenue Manual provides
                                      little direction to IRS employees regarding application of eco-
                                      nomic hardship to case decisions. National Taxpayer Advo-
                                      cate, 2008 Annual Report to Congress (Vol. 1) 21–22 (2008).
                                      Additionally, in many cases the IRS does not consider the loss
                                      of a taxpayer’s home and retirement assets an economic
                                      hardship. National Taxpayer Advocate, Report to Congress,
                                      Fiscal Year 2009 Objectives, at xxxvi (2008).




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                                      (374)                           HALL v. COMMISSIONER                                         383


                                      VII. Conclusion
                                        Respondent’s practice in this and similar cases has been to
                                      agree that the taxpayer is entitled to relief if the regulation
                                      is deemed invalid. Respondent has chosen not to inquire
                                      whether petitioner’s delay was not excusable and whether
                                      the delay is a factor favoring the denial of relief based upon
                                      a facts and circumstances test. For the reasons explained
                                      hereinbefore, we determine that,
                                                                               Decision will be entered for petitioner.
                                        Reviewed by the Court.
                                        COLVIN, COHEN, WELLS, MARVEL, WHERRY, KROUPA, and
                                      PARIS, JJ., agree with this majority opinion.



                                        WELLS, J., concurring: I agree with the majority that the
                                      period of limitations provided in section 1.6015–5(b)(1),
                                      Income Tax Regs., is invalid. I write separately to advance
                                      an additional reason I think the regulation is invalid.
                                        By regulation, the Commissioner is attempting to place an
                                      absolute, ironclad 2-year limitations period on making a
                                      request for equitable relief under section 6015(f), even
                                      though section 6015(f) contains no limitations period. The
                                      majority opinion properly characterizes respondent’s position
                                      in this case and the opinion of the Court of Appeals for the
                                      Seventh Circuit in Lantz v. Commissioner, 607 F.3d 479 (7th
                                      Cir. 2010), revg. 132 T.C. 131 (2009), as follows:
                                      By adopting a statute of limitations, the Court of Appeals accepted that
                                      cases invoking inequitable circumstances will be denied relief * * *
                                      [regardless of] the facts and circumstances. The cause of the delay in filing
                                      and the circumstances, no matter how extreme, are irrelevant. The Court
                                      of Appeals rejected the traditional method to address delay in the equity
                                      context because of subsections (b) and (c) of section 6015 and the 2-year
                                      limitations provision in those subsections which it found supports the use
                                      of the 2-year standard for subsection (f). [Majority op. p. 377; emphasis
                                      added; fn. ref. omitted.]

                                      I believe that respondent’s position in this case and the
                                      Court of Appeals’ opinion in Lantz are contrary to the pur-
                                      pose of section 6015(f), which is ‘‘to provide equitable relief
                                      in appropriate situations’’. H. Conf. Rept. 105–599, at 251
                                      (1998), 1998–3 C.B. 747, 1005. In addition to the reasons




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                                      384                135 UNITED STATES TAX COURT REPORTS                                            (374)


                                      already stated in the majority opinion and in our Lantz
                                      Opinion, 1 I believe that the regulation, which provides no
                                      exceptions to the 2-year period for extraordinary cir-
                                      cumstances, is contrary to the concept of ‘‘equitable tolling’’. 2
                                      Respondent has stipulated that petitioner is entitled to relief
                                      under section 6015(f) if her claim is timely. Respondent
                                      refuses to consider any facts regarding the 2-year limit; i.e.,
                                      we should just count the days and ignore the facts. Respond-
                                      ent’s position appears to be that if the absolute 2-year rule
                                      is valid, respondent prevails; and, if the 2-year rule is not
                                      valid, petitioner prevails. On that basis, petitioner should
                                      prevail.
                                        The specific purpose of section 6015(f) is to provide equi-
                                      table relief, and a fundamental form of equitable relief is to
                                      relieve a party from strict compliance with a limitations
                                      period when the failure to take timely action was due to
                                      extraordinary circumstances. This form of equitable relief is
                                      known as ‘‘equitable tolling’’. 3 On June 14, 2010, the
                                      Supreme Court articulated the principles of equitable tolling
                                      that would apply to provide relief even from a very specific
                                      period of limitations imposed by statute. In Holland v.
                                      Florida, 560 U.S. ll, ll, 130 S. Ct. 2549, 2560 (2010),
                                      the Supreme Court stated:
                                        We have previously made clear that a nonjurisdictional federal statute
                                      of limitations is normally subject to a ‘‘rebuttable presumption’’ in favor ‘‘of
                                      equitable tolling.’’ Irwin, 498 U.S., at 95–96; see also Young v. United
                                      States, 535 U.S. 43, 49 (2002) (‘‘It is hornbook law that limitations periods
                                      are ‘customarily subject to ‘‘equitable tolling’’ ’ ’’ (quoting Irwin, supra, at
                                      95)).

                                      The dissent in Holland v. Florida, supra at ll, 130 S. Ct.
                                      at 2569 (Scalia, J., dissenting) agreed with these principles:
                                         1 I do not believe that either the majority opinion or our Opinion in Lantz v. Commissioner,

                                      132 T.C. 131 (2009), revd. 607 F.3d 479 (7th Cir. 2010), stands for the proposition that there
                                      can be no period of limitations under sec. 6015(f).
                                         2 Judge Gustafson in his concurring opinion suggests that I am invoking the ‘‘doctrine of ‘equi-

                                      table tolling’ ’’. Concurring op. note 2. However, I actually have chosen not to use the term ‘‘doc-
                                      trine’’ here, because I am referring only to the principles of equitable tolling. I believe that re-
                                      spondent’s failure to incorporate any relief from his strict 2-year regulatory limitations period
                                      for extraordinary circumstances is improper because it is contrary to the equitable ‘‘principles’’
                                      underlying equitable tolling. I do suggest infra note 5 that the ‘‘doctrine’’ of equitable tolling
                                      would apply in the event the regulation in question were to be held valid.
                                         3 An additional, but similar, form of equitable relief may be available; i.e., ‘‘equitable estoppel’’.

                                      Equitable estoppel applies when one of the litigants does something to prevent the other from
                                      making a timely claim. See Wolin v. Smith Barney Inc., 83 F.3d 847, 852 (7th Cir. 1996) (dif-
                                      ference between equitable tolling and equitable estoppel discussed).




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                                      (374)                           HALL v. COMMISSIONER                                         385


                                        The Court is correct, ante, at * * * [130 S. Ct. at 2560–2561], that we
                                      ordinarily presume federal limitations periods are subject to equitable
                                      tolling unless tolling would be inconsistent with the statute. Young v.
                                      United States, 535 U.S. 43, 49 (2002). That is especially true of limitations
                                      provisions applicable to actions that are traditionally governed by equi-
                                      table principles—a category that includes habeas proceedings. See id., at
                                      50. * * *

                                         In holding that the principle of equitable tolling was
                                      applicable, in spite of a limitations period that was specifi-
                                      cally spelled out in the statute, the Supreme Court distin-
                                      guished its prior holding in United States v. Brockamp, 519
                                      U.S. 347 (1997), which held that equitable tolling was not
                                      applicable to the period of limitations on tax refunds pro-
                                      vided in section 6511. In Holland, the Supreme Court noted
                                      that in Brockamp it had interpreted the section 6511 limita-
                                      tions period as foreclosing application of that doctrine but
                                      had emphasized that section 6511:
                                      (1) ‘‘se[t] forth its time limitations in unusually emphatic form’’; (2) used
                                      ‘‘highly detailed’’ and ‘‘technical’’ language ‘‘that, linguistically speaking,
                                      cannot easily be read as containing implicit exceptions’’; (3) ‘‘reiterate[d] its
                                      limitations several times in several different ways’’; (4) related to an
                                      ‘‘underlying subject matter,’’ nationwide tax collection, with respect to
                                      which the practical consequences of permitting tolling would have been
                                      substantial; and (5) would, if tolled, ‘‘require tolling, not only procedural
                                      limitations, but also substantive limitations on the amount of recovery—
                                      a kind of tolling for which we . . . found no direct precedent.’’ * * * [Hol-
                                      land v. Florida, supra at ll, 130 S. Ct. at 2561, quoting United States
                                      v. Brockamp, supra at 350–352.]

                                      Four of the five factors that were used to decide that equi-
                                      table tolling did not apply to section 6511 are absent in sec-
                                      tion 6015(f) or the regulation; the only common factor
                                      present in both section 6015(f) and section 6511 is that both
                                      involve Federal tax. A major distinction between the two
                                      statutes is that section 6511 provides exclusively a limita-
                                      tions period, while section 6015(f) does not even mention a
                                      limitations period.
                                         An equally compelling argument that equitable tolling
                                      principles should be considered in any reasonable regulatory
                                      limitations period that might apply to section 6015(f) relief is
                                      that the specific statutory purpose of section 6015(f) is to
                                      avoid inequity. Moreover, section 6015(f) itself was enacted
                                      during 1998 in conjunction with section 6511(h). Section
                                      6511(h) effectively overruled the result reached by the




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                                      386                135 UNITED STATES TAX COURT REPORTS                                           (374)


                                      Supreme Court in Brockamp and allowed for equitable tolling
                                      of the section 6511 limitations period when taxpayers were
                                      unable to manage their financial affairs. Indeed, section
                                      6015(f) was enacted in the Internal Revenue Service Restruc-
                                      turing and Reform Act of 1998 (RRA 1998), Pub. L. 105–206,
                                      sec. 3201, 112 Stat. 734, and section 6511(h) was enacted in
                                      RRA 1998 sec. 3202, 112 Stat. 740, the very next section of
                                      the same act. The two sections were packaged together in the
                                      conference committee report under the heading ‘‘Relief for
                                      Innocent Spouses and for Taxpayers Unable to Manage Their
                                      Financial Affairs Due to Disabilities’’. H. Conf. Rept. 105–
                                      599, supra at 249, 1998–3 C.B. at 1003. Both of those provi-
                                      sions were considered and enacted as part of the same bill.
                                      It seems clear that Congress would not have provided for
                                      equitable tolling in section 6511(h) and then simultaneously
                                      allowed the Commissioner to disregard equitable tolling prin-
                                      ciples in the companion statutory provision that gives the
                                      Commissioner and the Tax Court the power to avoid inequi-
                                      table results by considering all the facts and circumstances. 4
                                        In Pollock v. Commissioner, 132 T.C. 21 (2009), we consid-
                                      ered whether equitable tolling could extend the 90-day period
                                      provided by section 6015(e) for filing a petition in this Court.
                                      We held that the filing period in section 6015(e) was not
                                      susceptible to equitable tolling because it was jurisdictional.
                                      We stated:
                                         The most important point to notice is that the Code here actually uses
                                      the word ‘‘jurisdiction’’—giving us ‘‘jurisdiction’’ if someone files her peti-
                                      tion within the 90-day time limit. Statutes granting a court ‘‘jurisdiction’’
                                      if a case is filed by a stated deadline look more like jurisdictional time
                                      limits. Zipes, 455 U.S. at 393–94.

                                                                      *        *      *       *   *       *   *


                                        4 Disregarding this legislative history, in his brief to the Court of Appeals for the Seventh Cir-

                                      cuit in Lantz v. Commissioner, 607 F.3d 479 (7th Cir. 2010), revg. 132 T.C. 131 (2009), the Com-
                                      missioner argued, quoting the dissent in this Court, that there is no ‘‘indication in the legislative
                                      history that in devising § 6015(f), Congress was concerned with giving taxpayers a longer time
                                      within which to seek relief ’’ and that ‘‘ ‘[we] find nothing in this legislative history suggesting
                                      Congress wanted the Secretary to use his new discretion under subsection (f) to give relief to
                                      those who missed the statutory deadlines for relief under subsections (b) and (c).’ ’’ The Court
                                      of Appeals expressed ‘‘doubt that Congress would want to preclude the Treasury from imposing
                                      a deadline designed to reduce the flow to manageable proportions.’’ Id. at 486. The legislative
                                      history quoted above would support a contrary view.




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                                      (374)                           HALL v. COMMISSIONER                                              387


                                         Courts also commonly distinguish statutes of limitation from jurisdic-
                                      tional deadlines by the complexity of a statute’s language. Brockamp, 519
                                      U.S. at 350–51. * * *

                                                                 *   *     * *  *   *   *
                                         Statutes of limitation, on the other hand, have no such jurisdictional
                                      identifiers, and courts construe them with a presumption that they were
                                      written against a backdrop of legal default rules and doctrines that they
                                      can legitimately apply when the statute is silent and the facts of a par-
                                      ticular case warrant it. And one of these default rules, as the Supreme
                                      Court recently clarified, is a rebuttable presumption in favor of equitable
                                      tolling’s availability in suits brought by a private party against the
                                      Government. John R. Sand & Gravel Co., 552 U.S. at 136–138.
                                         [Id. at 30–32; fn. ref. omitted.]

                                       In Pollock, we discussed the crucial distinction between a
                                      mere period of limitations and a jurisdictional limitation:
                                         This gets us directly to the Commissioner’s most compelling point—that
                                      the District Court misconstrued section 6015’s 90-day deadline to be a
                                      statute of limitations rather than a jurisdictional requirement. This
                                      distinction is crucial: A statute of limitations simply prescribes a period in
                                      which a court may enforce certain rights. Young v. United States, 535 U.S.
                                      43, 47 (2002). Courts may equitably toll them unless it would be incon-
                                      sistent with the particular terms of the relevant statute. Id. at 49; John
                                      R. Sand & Gravel Co., 552 U.S. at 133. They ‘‘protect a defendant’s case-
                                      specific interest in timeliness,’’ John R. Sand & Gravel Co., 552 U.S. at
                                      133, and courts may be able to look past delay because a limitations period
                                      is, like other affirmative defenses, subject to exceptions such as waiver,
                                      estoppel—or equitable tolling, Zipes, 455 U.S. at 393; In re Intl. Admin.
                                      Servs., Inc., 408 F.3d 689, 701 (11th Cir. 2005). [Id. at 28–29.]

                                        I do not believe that anyone could reasonably claim that
                                      the regulation providing a 2-year limitations period in section
                                      1.6015–5(b)(1), Income Tax Regs., is a restriction on our
                                      jurisdiction to review the Commissioner’s denial of section
                                      6015(f) relief.
                                        I believe that the foregoing analysis supports the conclu-
                                      sion in the majority opinion and provides an additional basis
                                      for invalidating the regulation. 5
                                        COLVIN, COHEN, GOEKE, WHERRY, and KROUPA, JJ., agree
                                      with this concurring opinion.
                                        5 Even if the period of limitations in sec. 1.6015–5(b)(1), Income Tax Regs., is valid, I believe

                                      that such a period of limitations would be subject to the ‘‘doctrine’’ of equitable tolling. In that
                                      regard, the ‘‘doctrine’’ of equitable tolling may apply if the litigant can prove that (1) the litigant
                                      has been pursuing the litigant’s rights diligently, and (2) that some extraordinary circumstance
                                      stood in the litigant’s way and prevented timely filing. Holland v. Florida, 560 U.S. ll, ll,
                                      130 S. Ct. 2549, 2562 (2010). The facts before us include a statement that petitioner was advised
                                      by respondent that she still had 2 years to make her claim.




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                                      388                135 UNITED STATES TAX COURT REPORTS                                       (374)



                                         GUSTAFSON, J., concurring: I concur with the result
                                      reached by the majority—i.e., that the two-year deadline
                                      imposed in 26 C.F.R. section 1.6015–5(b)(1), Income Tax
                                      Regs., is invalid. I part company with the majority only in
                                      aspects of its rationale that do not affect the outcome (dis-
                                      cussed in parts I–III below); and I still conclude—for the rea-
                                      sons that we stated in Lantz v. Commissioner, 132 T.C. 131,
                                      138–144 (2009), revd. 607 F.3d 479 (7th Cir. 2010), and that
                                      I summarize below in part IV—that the IRS’s two-year dead-
                                      line is invalid because it is at odds with the congressional
                                      intent evident in the statute.
                                      I. ‘‘[A]ll the facts and circumstances’’
                                         The majority states today: ‘‘the regulation, which bars
                                      relief from inequity solely upon the ground that it was
                                      requested beyond a specified period, failed to consider all the
                                      facts and circumstances’’, for purposes of section 6015(f)(1).
                                      Majority op. p. 379. 1 This reasoning would apparently dis-
                                      allow the Internal Revenue Service (IRS) from imposing by
                                      regulation any set deadline for filing requests for equitable
                                      relief from joint liability under section 6015(f), because any
                                      set deadline, when applied, would ‘‘mak[e] one circumstance,
                                      the time of the claim, the only relevant factor’’, majority op.
                                      p. 380, rather than having ‘‘all the facts and circumstances’’
                                      govern the outcome.
                                         However, the Internal Revenue Code is replete with ‘‘facts
                                      and circumstances’’ provisions that are subject to procedural
                                      deadlines. Nearby section 6015(b)(1)(D) has identical lan-
                                      guage (‘‘taking into account all the facts and circumstances,
                                      it is inequitable’’ (emphasis added)), but the relief provided
                                      in section 6015(b) depends on an election’s being made before
                                      a two-year deadline. Sec. 6015(b)(1)(E). That is, under section
                                      6015(b) Congress both required that ‘‘all the facts and cir-
                                      cumstances’’ be taken into account and provided in effect
                                      that, if an election was not made within two years, the single
                                      fact of timing would govern the outcome. The ‘‘all the facts
                                      and circumstances’’ provision in section 6015(f) thus does not,
                                      in and of itself, preclude a deadline for an equitable claim.
                                        1 For this ‘‘facts and circumstances’’ proposition the majority cites our Opinion in Lantz v.

                                      Commissioner, 132 T.C. 131, 150 (2009), revd. 607 F.3d 479 (7th Cir. 2010). We did not explicitly
                                      so state in Lantz.




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                                      (374)                             HALL v. COMMISSIONER                                                389


                                         Consequently, I conclude that a statute may provide a sub-
                                      stantive standard for equitable relief that takes into account
                                      ‘‘all the facts and circumstances’’ while, at the same time,
                                      providing or permitting a procedural deadline for the submis-
                                      sion of a request for that relief.
                                      II. ‘‘Equitable Relief ’’
                                         The majority observes critically that the Court of Appeals
                                      for the Seventh Circuit ‘‘rejected ‘laches’ ’’, majority op. p. 377
                                      citing Lantz v. Commissioner, 607 F.3d at 483; and the
                                      majority thereby seems to edge toward the position (not
                                      taken by this Court in Lantz) that the ‘‘Equitable Relief ’’ of
                                      section 6015(f) embodies concepts of equity, as opposed to
                                      law. At law, time limits are expressed in statutes of limita-
                                      tion; but equity jurisprudence developed instead the more
                                      flexible defense of laches (prejudicial delay) and the doctrine
                                      of ‘‘equitable tolling’’ of statutes of limitation, 2 concepts that
                                      would arguably be more congruent with the congressional
                                      purpose behind section 6015(f) than the IRS’s blunt applica-
                                      tion of the two-year rule of its regulation.
                                         However, the title ‘‘Equitable Relief ’’ does not warrant the
                                      conclusion that laches or equitable tolling inhere in section
                                      6015(f) to the exclusion of a regulation that provides an
                                      explicit limitations period. The word ‘‘equitable’’ may some-
                                      times implicate the law-equity distinction; 3 but usually the
                                      word ‘‘equity’’ means simply justice or fairness, ‘‘equitable’’
                                      means just or fair, 4 and ‘‘inequitable’’ means unjust or
                                         2 Judge Wells’s concurring opinion explains that the doctrine of ‘‘equitable tolling’’ may ‘‘re-

                                      lieve a party from strict compliance with a limitations period when the failure to take timely
                                      action was due to extraordinary circumstances.’’ Concurring op. p. 384. This raises an inter-
                                      esting question—i.e., whether the doctrine of equitable tolling would apply to a nonjurisdictional
                                      two-year limitations period like that in 26 C.F.R. section 1.6015–5(b)(1), Income Tax Regs. It
                                      appears that if the doctrine were pertinent here, then it would not invalidate the two-year dead-
                                      line (since equitable tolling can happen only when there is a (valid) deadline to toll) but instead
                                      would toll the deadline. The doctrine of equitable tolling might thus save the otherwise invalid
                                      regulation, by making the nonjurisdictional two-year regulatory limitation of section 6015(f) sub-
                                      ject to being tolled by equitable considerations that are inapplicable to the jurisdictional two-
                                      year statutory limitation of section 6015(b) and (c). However, the parties did not brief the subject
                                      of equitable tolling, so we have an insufficient basis for addressing this question.
                                         3 See, e.g., secs. 3232 (‘‘civil actions, whether legal or equitable in nature’’), 6214(b) (‘‘equitable

                                      recoupment’’), 6305(b) (‘‘legal or equitable’’), 6402(g) (‘‘legal or equitable’’, ‘‘legal, equitable, or ad-
                                      ministrative’’).
                                         4 See, e.g., secs. 417(f)(4) (‘‘A plan may take into account in any equitable manner (as deter-

                                      mined by the Secretary) any increased costs’’), 2205 (‘‘entitled to reimbursement * * * by a just
                                      and equitable contribution’’), 4975(d)(22)(H) (‘‘fair and equitable’’), 9037(b) (‘‘equitable distribu-
                                      tion of funds’’); Internal Revenue Service Restructuring and Reform Act of 1988, Pub. L. 105–
                                                                                                         Continued




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                                      390                135 UNITED STATES TAX COURT REPORTS                                       (374)


                                      unfair. 5 Those common meanings are appropriate here, for
                                      reasons stated by dissenting Judges Thornton and Holmes.
                                      See dissenting op. pp. 391–392. The ‘‘equitable’’ vocabulary of
                                      section 6015(f) does not implicitly or explicitly prohibit a
                                      regulatory deadline.
                                      III. ‘‘[P]rocedures prescribed by the Secretary’’
                                         Section 6015(f) provides that equitable relief is to be
                                      administered ‘‘[u]nder procedures prescribed by the Sec-
                                      retary’’, and the IRS promulgated the regulatory deadline
                                      under this authority; but the majority states that ‘‘a time bar
                                      is not simply a procedural rule.’’ Majority op. p. 379. In this
                                      context, however, a deadline is a ‘‘procedure’’: Congress
                                      placed the two-year deadline of section 6015(b)(1)(E) under
                                      the ‘‘Procedures For Relief From Liability Applicable to All
                                      Joint Filers’’; and it placed the two-year deadline of section
                                      6015(c)(3)(B) under the ‘‘Procedures To Limit Liability for
                                      Taxpayers No Longer Married’’. (Emphasis added.) Congress
                                      thus suggested that a time limit might be one of the ‘‘proce-
                                      dures’’ for granting relief, and it authorized the IRS to
                                      promulgate ‘‘procedures’’ for the ‘‘Equitable Relief ’’ provision
                                      of section 6015(f). See also Lantz v. Commissioner, 132 T.C.
                                      at 155–156 (Thornton and Holmes, JJ., dissenting). I think
                                      it cannot be said that Congress prohibited the IRS from
                                      promulgating any deadline for applying for equitable relief.
                                      IV. ‘‘[R]elief * * * not available * * * under subsection (b)
                                           or (c)’’
                                        If, as I conclude, section 6015(f) permits and authorizes the
                                      IRS to promulgate by regulation a deadline for taxpayers who
                                      request equitable relief, then the remaining issue is whether
                                      the deadline that the IRS did promulgate is a permissible
                                      deadline under the statute. I conclude it is not. Congress cre-
                                      ated two forms of so-called ‘‘traditional relief ’’ and imposed
                                      a two-year deadline on both. Sec. 6015(b)(1)(E), (c)(3)(B).
                                      Congress next provided for ‘‘Equitable Relief ’’—the whole
                                      purpose of which was to grant ‘‘relief * * * not available
                                      * * * under subsection (b) or (c)’’. Sec. 6015(f)(2) (emphasis
                                      added). For this broader equitable relief Congress did not
                                      206, sec. 1204(b), 112 Stat. 722 (‘‘fair and equitable treatment of taxpayers’’).
                                        5 See, e.g., secs. 4971(g)(5) (‘‘excessive or otherwise inequitable’’), 4980F(c)(4) (same),

                                      4980I(e)(2)(C) (same).




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                                      (374)                           HALL v. COMMISSIONER                                         391


                                      impose a two-year deadline—nor any deadline—and it
                                      authorized the IRS to establish ‘‘procedures’’. Sec. 6015(f). For
                                      the agency then to slap onto the equitable provision the same
                                      two-year deadline that Congress had manifestly chosen not
                                      to impose shows a failure to discern the Congressional pur-
                                      pose in enacting this broader equitable relief. The two-year
                                      deadline is not valid.



                                         THORNTON and HOLMES, JJ., dissenting: We continue
                                      respectfully to dissent from the majority and to think that
                                      the regulation requiring taxpayers to apply for relief under
                                      section 6015(f) within 2 years is valid under Chevron U.S.A.
                                      Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
                                      We explained our reasons in our dissent in Lantz v. Commis-
                                      sioner, 132 T.C. 131, 152–161 (2009). The Court of Appeals
                                      for the Seventh Circuit reversed the majority in that case,
                                      607 F.3d 479 (7th Cir. 2010), and the issue is already
                                      pending in at least two other circuits, see Mannella v.
                                      Commissioner, No. 10–1308 (3d Cir.) (argument set for
                                      November 17, 2010), appealing 132 T.C. 196 (2009); Coulter
                                      v. Commissioner, No. 10–680 (2d Cir.) (briefing completed
                                      September 8, 2010), appealing a stipulated decision of this
                                      Court.
                                         The majority mostly repeats its original reasons for invali-
                                      dating the regulation. We write again to respond to its new
                                      argument hinted at in its observation that ‘‘equity tradition-
                                      ally did not include a strict ‘statute of limitations’ ’’. Majority
                                      op. p. 377. The majority seems to suggest that by using the
                                      term ‘‘inequitable’’ in section 6015(f), Congress meant to
                                      invoke traditional notions of equity jurisprudence that would
                                      preclude the IRS from imposing any fixed deadline, notwith-
                                      standing the statute’s expansive delegation of discretionary
                                      authority for the IRS to provide relief ‘‘Under procedures pre-
                                      scribed by the Secretary’’.
                                         We think this argument reads too much into the word
                                      ‘‘inequitable’’ which, to an ordinary speaker of English, usu-
                                      ally just means ‘‘unfair’’. See Merriam Webster’s Collegiate
                                      Dictionary 638 (11th ed. 2008), http://mw1.merriam-web-
                                      ster.com/dictionary/inequitable. And that seems to be the
                                      way Congress thought it was using ‘‘inequitable’’. Section




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                                      392                135 UNITED STATES TAX COURT REPORTS                                       (374)


                                      6015(f) provides that the Secretary may provide relief if
                                      ‘‘taking into account all the facts and circumstances, it is
                                      inequitable to hold the individual liable for any unpaid tax
                                      or any deficiency’’. This language derives from former section
                                      6013(e), which, as enacted in 1971, authorized the Secretary
                                      to provide innocent spouse relief if various requirements
                                      were met, including that ‘‘taking into account all other facts
                                      and circumstances, it is inequitable to hold the other spouse
                                      liable for the deficiency’’. Act of Jan. 12, 1971, Pub. L. 91–
                                      679, sec. 1, 84 Stat. 2063. The contemporaneous reports of
                                      the congressional tax-writing committees indicate identically
                                      that the purpose of this legislation was to ‘‘correct the unfair-
                                      ness in the situations brought to the attention of this com-
                                      mittee and to bring government tax collection practices into
                                      accord with basic principles of equity and fairness.’’ H. Rept.
                                      91–1734, at 2 (1970) (emphasis added); S. Rept. 91–1537, at
                                      2 (1970), 1971–1 C.B. 606, 607 (emphasis added).
                                          Although the words ‘‘equity’’ or ‘‘equitable’’ might trigger
                                      echoes of old chancery practice, ‘‘inequitable’’ should not—the
                                      opposites of ‘‘equity’’ and ‘‘equitable’’ in the chancery sense
                                      are not ‘‘inequity’’ or ‘‘inequitable’’, but ‘‘common law’’ and
                                      ‘‘legal’’. We think it exceptionally improbable that the word
                                      ‘‘inequitable’’ in section 6015(f) means, as the majority might
                                      seem to suggest, ‘‘contrary to principles of equity jurispru-
                                      dence, including its traditional aversion to strict statutes of
                                      limitation.’’ A request for relief under section 6015(f) is called
                                      a request for ‘‘equitable relief ’’ not because it is a request for
                                      reformation, rescission, specific performance, or accounting,
                                      but because to a reasonable decisionmaker at the IRS it
                                      would be unfair to hold one spouse jointly liable with another
                                      for a particular tax debt.
                                          The majority believes that a fixed deadline is unfair
                                      because in some cases it may result in denial of relief that
                                      otherwise would be available. But, as Judge Posner observes,
                                      this circumstance ‘‘does not bear on the validity of the dead-
                                      line; any statute of limitations will cut off some, and often a
                                      great many, meritorious claims.’’ Lantz v. Commissioner, 607
                                      F.3d at 481.
                                          Similarly, we respectfully disagree with those concurring
                                      who believe that the concept of equitable tolling has any
                                      bearing on the validity of the regulation. If, as they suggest,
                                      equitable tolling might be available to provide relief from the




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                                      (374)                           HALL v. COMMISSIONER                                         393


                                      regulatory deadline—a theory, incidentally, that neither
                                      party has raised or addressed—this circumstance would
                                      negate the assumption, central to the majority’s reasoning,
                                      that the deadline is an absolute temporal bar to relief.
                                        HALPERN, GALE, and MORRISON, JJ., agree with this dis-
                                      sent.

                                                                               f




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