                              T.C. Memo. 2017-53



                        UNITED STATES TAX COURT



          ALBERT OKOROGU AND RITA OKOROGU, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 18025-14.                        Filed March 30, 2017.



      Akintunde Samuel Akintimoye, for petitioner Albert Okorogu.

      Renato L. Izquieta, for petitioner Rita Okorogu.

      Cassidy B. Collins and Christine A. Fukushima, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      COHEN, Judge: Respondent determined deficiencies of $14,826 and

$28,506 in petitioners’ Federal income tax for 2011 and 2012, respectively.

Respondent also determined accuracy-related penalties pursuant to section 6662(a)

of $2,965.20 and $5,701.20 for 2011 and 2012, respectively. Unless otherwise
                                         -2-

[*2] indicated, all section references are to the Internal Revenue Code in effect for

the years in issue, and all Rule references are to the Tax Court Rules of Practice

and Procedure.

      After concessions the issues for decision are: (1) whether respondent

properly disallowed itemized deductions that petitioners claimed for 2011 and

2012; (2) whether respondent properly disallowed deductions for business

expenses that petitioner Albert Okorogu (H) claimed in connection with his self-

employment for 2011 and 2012; (3) whether petitioners received and failed to

report cancellation of debt income of $3,009 for 2012; (4) whether H received and

failed to report unemployment compensation of $15,300 for 2012; (5) whether

petitioners are liable for the accuracy-related penalties under section 6662(a); and

(6) whether petitioner Rita Okorogu (W) is entitled to innocent spouse relief under

section 6015(f).

                                FINDINGS OF FACT

      Some of the facts have been stipulated, and the stipulated facts are

incorporated in our findings by this reference. H resided in Nigeria and W resided

in California at the time the petition was filed.
                                       -3-

[*3] Background on Petitioners’ Marriage

      H and W met in Nigeria and married in 2004. At the time of their marriage,

H worked as an optical engineer in California. W was a physician and worked at a

teaching hospital in Nigeria. H returned to California after the wedding and W

remained in Nigeria until 2006. In 2006, W and the couple’s two young children

moved to California to live with H.

      W is and was at the time that she moved a proficient English speaker, but

she could not work as a physician in the United States. W was a stay-at-home

mother and homemaker for several years after she moved to the United States.

Besides H and her children, W did not have any family members or close friends

living in the United States during this time. H emotionally and physically abused

W throughout their marriage, frequently in the presence of their children.

      Incidents of Abuse

      H was highly controlling of W’s life inside and outside the home; in

particular, he monitored and restricted W’s social interactions. At some point in

2010 H “bugged the house” and he overheard W and her mother, who had come

from Nigeria to visit her grandchildren, “gossiping” about him. When H returned

home he beat W so badly that she had to be taken to the emergency room. W’s

back was broken and she could not walk normally for months.
                                       -4-

[*4] In another incident in 2011 H examined W’s phone and discovered the

phone number of a woman with whom he had forbidden W to speak. H

confronted W and started hitting her and choking her in front of their children. W

managed to get free and call the police and H was arrested on charges of domestic

battery, child endangerment, and dissuading a witness. W stated to police at this

time that there had been “at least 10 separate domestic violence events in the home

since 2006”.

      Following the 2011 incident W filed for and obtained a temporary

restraining order against H. W obtained several temporary restraining orders

against H between 2011 and 2014, but she never followed up to obtain a

permanent restraining order because she feared it would give H “a reason to

become [even] more violent”. For the 2011 incident H was charged and found

guilty of misdemeanor battery by the Los Angeles County Superior Court.

      Control of Family Finances

      H controlled all decisions regarding spending and family finances. H did all

of the shopping for the family, even picking out the clothes that W would wear.

Before 2012 H provided W with a debit card on which he imposed a $10 spending

limit. If W exceeded the $10 limit H would take away the debit card, take away

W’s car keys, and throw her out of the house and lock the door. During this same
                                        -5-

[*5] time H purchased for himself numerous new vehicles, including a Dodge

Ram truck, a Range Rover, a Mercedes GL450, and a Volkswagen Phaeton, which

he later had shipped to Nigeria.

      H was highly secretive and routinely neglected to inform or consult W about

matters that significantly affected their family finances. In 2007 H purchased a

house in Valencia, California (Valencia house). County records show that after W

and the children moved into the Valencia house W executed a quitclaim deed

transferring her interest in the house to H as his sole and separate property. W

does not recall ever being presented with or signing that deed.

      In October 2010 H executed a grant deed that transferred the Valencia house

to himself and another individual as “co-trustees of the Okorogu Family Trust”. H

executed two more grant deeds for the Valencia house in December 2010 and

January 2011 to two more individuals also designated “co-trustees” of the family

trust. H did not inform W about the transfers, and W did not know any of the

individuals named in the grant deeds. Eventually H became unable to pay for the

Valencia house, and H and W and the children were forced to leave.
                                         -6-

[*6] W’s and H’s Employment and Income

      Employment and Wages for Years in Issue

      In September 2011 W began working full time at the University of

California at Los Angeles (UCLA) as a clinical researcher. UCLA paid W wages

of $21,068 and $60,390 in 2011 and 2012, respectively. W’s job at UCLA ended

in September 2013 when the grant providing for her employment ran out.

      From at least 2006 until 2012 H worked as an optical engineer at the

Aerospace Corp. (Aerospace) in El Segundo, California. Aerospace paid H wages

and other compensation of $103,988 and $60,256 in 2011 and 2012, respectively.

H was laid off by Aerospace in March 2012.

      In addition to his employment at Aerospace H reported on his Federal

income tax returns for 2011 and 2012 income and losses arising from business

activity that he conducted through a sole proprietorship. In connection with this

business H claimed deductions for various expenses, including advertising,

contract labor, insurance, office expenses, supplies, taxes and licenses, travel,

utilities, and other expenses. H reported net losses from his business activity of

$37,892 and $72,717 for 2011 and 2012, respectively.
                                         -7-

[*7] Other Sources of Income for Years in Issue

      In April 2012 H began receiving $450 per week pursuant to an

unemployment insurance claim filed with the Employment Development

Department (EDD) of the State of California. The EDD issued H payments

totaling $15,300 as unemployment compensation in 2012.

      On April 30, 2012, Aerospace Federal Credit Union (credit union) sent a

letter advising petitioners that they were delinquent in making payments on a Visa

credit card debt. Various attempts were made between May and October of 2012

to contact petitioners about the Visa credit card debt and to set up a repayment

plan for this debt. On November 20, 2012, the credit union discharged the

outstanding debt of $3,009 on the Visa credit card and issued H a Form 1099-C,

Cancellation of Debt, reporting that amount. On November 28, 2012, the credit

union sent H a “Statement of Credit Denial, Termination or Change” informing

him that the credit union had charged off the Visa credit card debt.

W’s Current Financial Difficulties

      In May 2012 H left the United States and traveled back to Nigeria. H made

at least a couple of trips to the United States in 2012, and he also called regularly

to speak to W and their children. H currently resides in Nigeria. W still resides in

California with the children.
                                        -8-

[*8] H has provided money to support W and the children on only one occasion

since 2014. W is currently unemployed. As of the time of trial W depended on

welfare and food stamps for support.

Petitioners’ Tax Returns and the Notice of Deficiency

      Before 2014 W did not know of any obligation to file a tax return with the

Internal Revenue Service (IRS) reporting her income. W was not required to file

formal tax returns in Nigeria, and H never informed her of the requirement to do

so in the United States. Forms 1040, U.S. Individual Income Tax Return, electing

the status of married filing jointly were filed timely for H and W for tax years

2011 and 2012. Although the returns for 2011 and 2012 purported to bear W’s

electronic signature, W did not participate in the preparation of these returns and

did not sign them.

      The returns for 2011 and 2012 reported H’s and W’s wages from their

respective employment. Schedules C, Profit or Loss for Business, attached to the

returns claimed deductions for business expenses and reported net losses for H’s

business activity for both years. The returns also claimed itemized deductions for

H and W totaling $28,139 and $19,590 for 2011 and 2012, respectively.

Schedules A, Itemized Deductions, attached to the returns claimed deductions for

State and local taxes, personal property taxes, charitable contributions,
                                        -9-

[*9] unreimbursed employee expenses, tax preparation fees, and other expenses.

The return for 2012 did not report income from unemployment compensation or

cancellation of indebtedness.

      Respondent sent a notice of deficiency (notice) to petitioners on May 5,

2014. In the notice respondent disallowed all expenses claimed as deductions on

Schedules C for H’s business activity for 2011 and 2012. Respondent also

disallowed Schedule A itemized deductions for personal property taxes, charitable

contributions, unreimbursed employee expenses, and other expenses. Because the

sum of the itemized deductions that respondent allowed was less than the standard

deduction for each year, respondent adjusted petitioners’ joint taxable income to

allow the standard deduction. Respondent also determined that petitioners had

received and failed to report unemployment compensation income of $15,300 and

cancellation of debt income of $3,009, both for 2012. Other adjustments that

respondent determined in the notice were later conceded.

W’s Amended Petition

      On August 1, 2014, petitioners filed a joint petition in this Court that was

drafted by shared counsel. On February 4, 2015, the IRS received a completed

Form 8857, Request for Innocent Spouse Relief, for W requesting relief from the

tax liabilities determined in the notice. Because W filed the Form 8857 after her
                                        - 10 -

[*10] initial petition, the IRS did not issue a determination letter regarding her

request for innocent spouse relief. See Chief Counsel Notice CC-2013-011, 2013

WL 3148998 (June 7, 2013).

      On or around January 21, 2016, W obtained new counsel. Shortly thereafter

W moved for and was granted leave to file a separate amended petition. In the

amended petition W raised a claim to relief from joint and several liability under

section 6015. Respondent concedes that W is entitled to relief and H disputes her

entitlement.

                                      OPINION

I.    Deductions Claimed for 2011 and 2012

      Generally, taxpayers bear the burden of proving that the adjustments set

forth in the Commissioner’s notice of deficiency are erroneous. See Rule 142(a);

Welch v. Helvering, 290 U.S. 111 (1933). Specifically, taxpayers must prove their

entitlement to claimed deductions. See INDOPCO, Inc. v. Commissioner, 503

U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

Taxpayers bear the burden of maintaining the records needed to establish their

entitlement. See sec. 6001; Hradesky v. Commissioner, 65 T.C. 87, 89-90 (1975),

aff’d per curiam, 540 F.2d 821 (5th Cir. 1976).
                                            - 11 -

[*11] H alone was responsible for preparing the Forms 1040 that were the

purported joint tax returns for himself and W, and W had no information or

evidence relating to deductions. H did not attend or testify at trial, and he

presented no evidence to substantiate either the itemized deductions claimed for

petitioners or the expenses claimed as deductions for H’s business activity.

Respondent’s determinations in the notice regarding the itemized deductions and

the business expense deductions are therefore upheld because of petitioners’

failure to satisfy their burden of proof.

II.   Unemployment Compensation and Cancellation of Indebtedness Income

      Gross income includes unemployment compensation and any discharge of

indebtedness of the taxpayer. Secs. 61(a)(12), 85(a). In cases where the

Commissioner determines that the taxpayer received and failed to report some

item of gross income, the Commissioner bears the initial burden of producing at

least minimal evidence linking the taxpayer to the income-producing activity or

the receipt of funds. Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985).

Once the Commissioner meets the burden of production, the burden of proof shifts

to the taxpayer to produce credible evidence that he or she did not receive the

alleged income or of proving that the Commissioner’s deficiency calculations

were not grounded on a minimal evidentiary foundation. Id.; see also Fisher v.
                                       - 12 -

[*12] Commissioner, T.C. Memo. 2014-219, at *7. We conclude that

respondent’s determinations are based on substantive evidence linking petitioners

with the unemployment compensation and the discharge of indebtedness income.

      The record contains a certified IRS Wage and Income Transcript (transcript)

for H for tax year 2012. The transcript reflects that in 2012 the credit union issued

H a Form 1099-C reporting debt discharged of $3,009 and the EDD issued H a

Form 1099-G, Certain Government Payments, reporting unemployment

compensation payments of $15,300. Additionally, respondent at trial produced

certain business records of the credit union and the EDD. We received the records

of the credit union into evidence without objection; H’s counsel objected to the

admission into evidence of the records of the EDD “on the basis of authentication,

hearsay, best evidence rule, and lack of foundation”.

      H’s counsel’s primary objection to the introduction of the EDD records

focused on an irregularity in a cover letter that accompanied the records. The

cover letter is addressed to H and states that the attached summary of

unemployment compensation payments was issued in response to a request made

by H. Respondent’s counsel stipulated at trial that the EDD records were not

issued in response to a request by H and argued that this irregularity was due to
                                        - 13 -

[*13] attempts by the EDD to conform with the interagency document request

made by respondent.

      In the light of H’s objections, we reserved ruling on the admissibility of the

EDD records and stated that H would have the opportunity to challenge the

authenticity of those records as part of the posttrial briefing stage. Nothing in the

record leads us to doubt that the EDD records are genuine. We accept

respondent’s counsel’s explanation of the irregularity in the cover letter. The

records are prefaced by a certification that complies with the authentication

requirements of rule 902(11) of the Federal Rules of Evidence; and the records

otherwise fit within the hearsay exception for records of a regularly conducted

activity. See Fed. R. Evid. 803(6) (business records exception). We overrule H’s

objections and receive the records of the EDD into evidence.

      H has not raised a reasonable dispute as to the items of income reported on

the information returns. Absent a reasonable dispute, the transcript is sufficient to

establish a minimal evidentiary foundation for respondent’s determinations that H

received and failed to report cancellation of indebtedness and unemployment

compensation income. See sec. 6201(d); see also Hawkins v. Commissioner, T.C.

Memo. 2008-168, 2008 WL 2736247, at *2-*3. The business records of the credit

union and the EDD further substantiate the amounts of income and the dates that
                                       - 14 -

[*14] H received them. Because petitioners produced no evidence to contradict

the records supporting respondent’s determinations, we sustain the income

adjustments in the notice for unemployment compensation and discharge of

indebtedness income.

III.   Section 6662(a) Accuracy-Related Penalties

       Respondent determined for each of the years 2011 and 2012 that petitioners

are liable for an accuracy-related penalty pursuant to section 6662(a). Section

6662(a) and (b)(1) and (2) imposes a 20% accuracy-related penalty on any portion

of an underpayment of Federal income tax that is attributable to a taxpayer’s

negligence or a substantial understatement of income tax. Respondent asserts that

petitioners had substantial understatements of income tax and that they were

negligent in their underpayments for the years in issue. Under section 7491(c), the

Commissioner bears the burden of production with regard to penalties and must

come forward with sufficient evidence indicating that it is appropriate to impose

penalties. Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).

       An “understatement” is defined as the excess of the tax required to be

shown on the return over the tax actually shown on the return, less any rebate.

Sec. 6662(d)(2)(A). An understatement of income tax is substantial if it exceeds

the greater of 10% of the tax required to be shown on the return or $5,000. Sec.
                                       - 15 -

[*15] 6662(d)(1)(A). Five thousand dollars is greater than 10% of the tax that we

conclude was required to be shown on petitioners’ returns. Respondent has met

the initial burden of production because our conclusions as to the deficiencies

result in the following substantial understatements:

                         Tax shown              Tax required
        Year            on Form 1040            to be shown       Understatement

        2011                $2,229                $17,055             $14,826
        2012                 1,879                 30,385              28,506

Because respondent has met the burden of production by showing that the

understatements are substantial, we need not address the issue of negligence. See

sec. 1.6662-2(c), Income Tax Regs.

      Once the Commissioner has met the burden of production, the burden of

proof remains with the taxpayer, and he or she must come forward with persuasive

evidence that the penalty is inappropriate. Rule 142(a); Higbee v. Commissioner,

116 T.C. at 448-449. The section 6662(a) penalty is inappropriate for any portion

of the underpayment for which it is shown the taxpayer had reasonable cause and

acted in good faith. Sec. 6664(c)(1). Whether the taxpayer acted with reasonable

cause and in good faith is decided on a case-by-case basis, taking into account all

pertinent facts and circumstances. See sec. 1.6664-4(b)(1), Income Tax Regs.
                                        - 16 -

[*16] H did not testify at trial and there is otherwise no information in the record

regarding how and under what circumstances the joint returns for H and W were

prepared. Ultimately neither petitioner put facts forward to show that the penalties

should not apply. Accordingly, respondent’s determinations of the accuracy-

related penalties are upheld.

IV.   W’s Request for Innocent Spouse Relief

      Married taxpayers may elect to file a joint Federal income tax return. Sec.

6013(a). Generally, after making the election, each spouse is jointly and severally

liable for the entire tax due for that taxable year. Sec. 6013(d)(3). However, a

spouse who has made a joint return may elect to seek relief from joint and several

liability under section 6015. Sec. 6015(a). We have jurisdiction to determine a

requesting spouse’s entitlement to relief under section 6015 where, as here, the

spouse has raised the matter as an affirmative defense in a petition invoking the

Court’s deficiency jurisdiction under 6213(a). Maier v. Commissioner, 119 T.C.

267, 270 (2002), aff’d, 360 F.3d 361 (2d Cir. 2004).

      At least a portion of the understatement of tax for each of 2011 and 2012

arises from disallowed joint itemized deductions, which are attributable in part to

W; also, a portion of the understatement for 2012 arises from $16 of interest

income that W concedes she received and failed to report. The parties therefore
                                         - 17 -

[*17] agree that W is not entitled to full relief from the deficiencies determined in

the notice under either section 6015(b) or (c). If a requesting spouse is not eligible

for relief under section 6015(b) or (c), he or she may be eligible for relief under

section 6015(f). Sec. 6015(f)(2).

      Section 6015(f) provides that a requesting spouse may be relieved from

joint and several liability if “taking into account all the facts and circumstances, it

is inequitable to hold the individual liable for any unpaid tax or any deficiency (or

any portion of either)”. For determinations by the Commissioner, the statute

directs that equitable relief be granted “[u]nder procedures prescribed by the

Secretary”. Sec. 6015(f)(1). Rev. Proc. 2013-34, 2013-43 I.R.B. 397, superseding

Rev. Proc. 2003-61, 2003-2 C.B. 296, provides guidelines that the Commissioner

follows in determining whether a requesting spouse qualifies for equitable relief

under section 6015(f). We consider “all relevant facts and circumstances” in

determining whether a requesting spouse qualifies for such relief. Sec. 6015(f)(1);

Porter v. Commissioner, 132 T.C. 203, 210 (2009). This Court has considered the

factors and analysis of Rev. Proc. 2013-34, supra, in prior cases decided under

section 6015(f). See, e.g., Reilly-Casey v. Commissioner, T.C. Memo. 2013-292,

at *10 n.6; see also Pullins v. Commissioner, 136 T.C. 432, 438-439 (2011)

(employing analogous factors from Rev. Proc. 2003-61, supra).
                                        - 18 -

[*18] W asserts, and respondent concedes, that she meets the criteria for relief

outlined by Rev. Proc. 2013-34, supra, and that she should be granted full relief

from the liabilities determined in the notice. However, before we render a

determination on the merits of W’s claim for equitable relief, we must determine

whether the returns filed for petitioners for 2011 and 2012 were valid joint returns.

Equitable relief can be granted only for an individual who “has made a joint

return”. Sec. 6015(a)(1); see also Rev. Proc. 2013-34, sec. 4.01(1), 2013-43 I.R.B.

at 399. H opposes our granting of equitable relief for W on the ground that the

returns that he caused to be filed for himself and W for the years in issue were not

valid joint returns.

      In support of his position, H cites W’s testimony and statements made on

W’s completed Form 8857 that she knew nothing of the preparation or filing of the

returns for the years in issue, that her purported signature on the returns was a

forgery, and that she was unaware of any tax reporting obligation at the time that

the returns were filed. H argues that because the 2011 and 2012 returns were not

valid joint returns, the liabilities determined for those years should be

redetermined on the basis of rates and allocation of income for married persons

filing separately. W and respondent argue that although W did not sign and did

not expressly agree to H’s filing of the returns for 2011 and 2012, the returns
                                         - 19 -

[*19] were valid joint returns because W tacitly consented to the filing of joint

returns by H.

      Whether a joint return has been filed is a question of fact, the resolution of

which depends upon the intent of the parties. Heim v. Commissioner, 27 T.C.

270, 273-274 (1956), aff’d, 251 F.2d 44 (8th Cir. 1958). To file jointly both

spouses must intend to make a joint return. See Lane v. Commissioner, 26 T.C.

405, 408-409 (1956); Weber v. Commissioner, T.C. Memo. 1995-125, 1995

WL128456, at *3. The absence of the signature of one spouse does not

necessarily preclude a finding of a valid joint return where the facts otherwise

indicate that an income tax return was intended by both spouses to be a joint

return. Hennen v. Commissioner, 35 T.C. 747, 748 (1961).

      The “tacit consent rule” holds that the intent to file a joint return may be

inferred from facts demonstrating that a nonsigning spouse tacitly approved or

acquiesced in the other spouse’s filing of the joint return. See, e.g., id.; Harris v.

Commissioner, T.C. Memo. 1961-324, 1961 WL 565. This Court has considered a

variety of factors in evaluating the issue of tacit consent, especially whether the

nonsigning spouse filed a separate return, whether the nonsigning spouse objected

to the other spouse’s joint filing, and whether the couple’s prior filing history

indicates the intent to file jointly. See, e.g., Heim v. Commissioner, 27 T.C. at
                                        - 20 -

[*20] 274; Howell v. Commissioner, 10 T.C. 859, 866 (1948), aff’d per curiam,

175 F.2d 240 (6th Cir. 1949); Carroro v. Commissioner, 29 B.T.A. 646, 650

(1933). Thus, a history of reliance by the nonsigning spouse on the other spouse

with respect to family financial matters, including the preparation of tax returns,

suggests that the nonsigning spouse consented to the other spouse’s filing of the

return in question. See Estate of Campbell v. Commissioner, 56 T.C. 1, 12-13

(1971). Furthermore, the inclusion of income and deductions attributable to the

nonsigning spouse on the return generally will be taken as proof of the intent to

file a joint return, even where the nonsigning spouse failed to give his or her

express consent to the filing. See, e.g. Federbush v. Commissioner, 34 T.C. 740,

756 (1960), aff’d, 325 F.2d 1 (2d Cir. 1963); Acquaviva v. Commissioner, T.C.

Memo. 1996-542, 1996 WL 724146, at *6.

      The tacit consent rule has been described as an extension of the presumption

of correctness that generally attaches to the Commissioner’s determinations,

specifically, a determination that a joint return was made despite the fact that one

spouse failed to sign the return. Hennen v. Commissioner, 35 T.C. at 749. The

returns that H prepared for 2011 and 2012 were each submitted with what

purported to be W’s electronic signature, and respondent accepted and processed

the returns as the valid joint returns for H and W. Accordingly, the notice issued
                                        - 21 -

[*21] by respondent determined that H and W were jointly and severally liable for

the deficiencies determined therein. Respondent has maintained the position

throughout this proceeding that the returns submitted by H were valid joint

returns.

      H indisputably intended to file joint income tax returns with W for the years

in issue. H was responsible for preparing the returns and for providing all of the

information shown on them. By electing joint filing status H benefited from tax

rates and other items available only to joint filers, and he claimed exemptions and

other deductions attributable to the family unit. When the original petition was

filed in this Court, H filed it jointly with W; at that time H did not contend that

respondent’s deficiencies should be redetermined on the basis that he and his

spouse should be treated as married persons filing separately. H raised the

argument that the 2011 and 2012 returns were not valid joint returns only

following the filing of W’s amended petition.

      The situation here is unusual in that the spouse whose signature is not on

the return is adopting it whereas the spouse who filed the return as a joint return

attempts to disavow it. W has testified that the returns for 2011 and 2012 were

prepared and filed entirely without her knowledge or consent, that she never

looked at or signed those returns, and that she was not even aware at the time that
                                        - 22 -

[*22] those returns were filed that she had an obligation to report her income to

the IRS. W also testified that she is a “law-abiding citizen” and that she would

have ensured that returns were filed for her for the years in issue had she known of

the obligation to file. Indeed, W testified that she would have signed the exact

returns prepared by H had he presented them to her.

      Perhaps because the facts of this case are so unusual, the parties have not

cited and we have not found any authority directly in point. Some guidance,

however, may be found in O’Connor v. Commissioner, 412 F.2d 304, 308-309 (2d

Cir. 1969), aff’g on this issue and rev’g on other grounds T.C. Memo. 1967-174.

Late in the history of the controversy, the wife claimed that the returns in question

were not joint returns. This Court and the Court of Appeals both recognized that

the evidence was conflicting as to whether returns signed only by the husband and

in his name were joint returns. This Court reached the conclusion, and the Court

of Appeals affirmed, that the returns were valid joint returns after balancing the

evidence and giving greater weight to the inclusion on the returns of the wife’s

income, the spouses’ filing of a joint petition in which they did not reject the

Commissioner’s joint treatment of them, the belated repudiation of joint return

classification, and the husband’s failure to testify although he “was in a position to
                                           - 23 -

[*23] shed much light on his understanding of the returns and his wife’s

knowledge and approval thereof”. Id. at 309.

         W’s failure to object to H’s filing or to file separate returns for the years in

issue may be explained by her ignorance, at the time, of any tax reporting

obligation. However, we do not conclude that W’s ignorance in this respect

discredits her contention that she tacitly consented to H’s filing for her for the

years in issue. W’s ignorance was due to H’s conscious efforts to dominate family

finances and to close her off from social interactions. W testified convincingly

that she would have acquiesced in H’s filing and signed the returns had H

presented them to her at the time that he prepared them. In the light of W’s

testimony we cannot view her simple lack of knowledge of the filing requirement

as evidence of any desire or intent not to file joint returns with H for the years in

issue.

         W’s actions following the time that she learned of a tax reporting obligation

are consistent with her assertion that she tacitly consented to the joint filings made

by H for 2011 and 2012. When W filed a separate return for tax year 2013, she

elected head of household status for herself, but she made no attempt to amend or

resubmit the earlier return filed for her for 2011 or 2012. The record of W’s

administrative filings and her actions before this Court, including her amended
                                         - 24 -

[*24] petition arguing that she is entitled to relief from joint and several liability,

shows that she has consistently ratified and adopted the returns that H filed for the

years in issue. See Ziegler v. Commissioner, T.C. Memo. 2003-282, 2003 WL

22255664, at *3.

       On balance, the evidence leads us to conclude that W approved or at least

acquiesced in H’s filing of joint returns for 2011 and 2012. We conclude that W

tacitly consented to filing joint income tax returns with H for 2011 and 2012 and

that the returns filed for petitioners for those years were valid joint returns. Other

than challenging the validity of the joint returns, H does not advance any argument

that W fails to meet the conditions for equitable relief as prescribed in Rev. Proc.

2013-34, supra, and as applied by this Court in other cases. We agree with W and

respondent that those conditions are met. See id. secs. 4.01, 4.02, 2013-43 I.R.B.

at 399-400. Abuse and restricting access to necessary financial information are

factors that strongly favor granting equitable relief under section 6015(f). See id.

secs. 3.01, 4.01(7)(d), 4.02(3)(a), 2013-43 I.R.B. at 398-400; see also Hollimon v.

Commissioner, T.C. Memo. 2015-157, at *8-*9.

      W’s testimony and supporting documentation that she provided establishes

that she suffered from near constant emotional and physical abuse during the time

that H lived with her and the children in California. H strictly and secretively
                                        - 25 -

[*25] controlled the family’s finances, and W reasonably feared his retaliation for

any attempt to question or challenge his decisions. After H moved to Nigeria in

May 2012, he continued to instill fear in and exercise control over W and the

children. We accept W’s testimony that she remains fearful of his retaliation to

this day. H’s counsel’s attempts to discredit W’s testimony to this effect, arguing

that H was physically removed from the household and that W had control over

her own bank account from May 2012 onwards, ignore the realities of an abusive

relationship and the fact that H returned to California multiple times during this

period. There is no evidence supporting H’s arguments or contradicting W’s

testimony. His position in this case appears simply vindictive.

      We have considered all arguments made, and, to the extent not mentioned,

we conclude that they are moot, irrelevant, or without merit. To reflect the

foregoing,


                                                 Decision will be entered

                                       under Rule 155.
