                  T.C. Summary Opinion 2011-38



                     UNITED STATES TAX COURT



              JENNIFER M. DULANEY, Petitioner, AND
                  WALTER DULANEY, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 26364-08S.             Filed March 29, 2011.



     Jennifer M. Dulaney, pro se.

     Walter Dulaney, pro se.

     D’Aun E. Clark, for respondent.



     CARLUZZO, Special Trial Judge:    This case was heard

pursuant to the provisions of section 7463.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any


     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, in effect for the
relevant period. Rule references are to the Tax Court Rules of
Practice and Procedure.
                                 - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     In a final notice of determination dated August 6, 2008,

respondent denied petitioner’s claim for section 6015 relief with

respect to the joint and several income tax liabilities arising

from the 2004 and 2005 joint Federal income tax returns filed by

petitioner and Walter Dulaney (intervenor).   Those liabilities

arose from deficiencies assessed in due course following the

issuance of a notice of deficiency for each year.    According to

respondent, petitioner is not entitled to relief under section

6015(b), (c), or (f) because she knew, or had reason to know, of

the items giving rise to the deficiency for each year.

Intervenor joins with respondent in opposition to petitioner’s

claim for section 6015 relief.

                            Background

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

At the time the petition was filed, petitioner and intervenor

resided at separate addresses in Florida.

     Petitioner and intervenor were married in 1994.   They

separated in 2005 and were divorced in April 2006.

     For the most part, petitioner was not employed outside of

the home during the early years of her marriage to intervenor.

In 1999 she enrolled in college; in 2002 she graduated with an

associate’s degree.   Following her graduation, she was hired by
                                - 3 -

Martin Memorial Medical Center as a registered respiratory

therapist and was so employed during 2004 and 2005.    At all times

relevant intervenor was employed as a firefighter.

     During their marriage, petitioner was responsible for

handling the family finances.   She and intervenor maintained two

joint checking accounts, one with Bank of America and one with

Washington Mutual Bank, from which petitioner paid most, if not

all, of the household expenses and into which her salary and

intervenor’s salary were directly or otherwise deposited.

     Among other things, petitioner maintained receipts for

household expenditures, prepared ledgers recording those

expenditures, reviewed the monthly bank statements, reconciled

the checkbook balances with the balances shown on the bank

statements, and otherwise maintained the family’s records for

income tax purposes.

     Petitioner and intervenor routinely filed joint Federal

income tax returns during their marriage.    Although petitioner

maintained, organized, and provided various records used to

prepare their joint return for each year, she did not directly

participate in the preparation of any of those returns, including

the joint returns filed for 2004 and 2005.

     The 2004 joint return was prepared by an income tax return

preparer; intervenor prepared and electronically filed the 2005
                                - 4 -

return.2   Petitioner’s income during 2004 and 2005 obligated her

to file a Federal income tax return for each of those years.

     The joint return for each year here in issue includes a

Schedule A, Itemized Deductions, on which the deductions for the

following expenses are claimed:    (1) Medical and dental expenses;

(2) taxes; (3) home mortgage interest; (4) gifts to charity; (5)

tax preparation fees; (6) “Other expenses”; and (7) unreimbursed

employee business expenses relating to intervenor’s employment as

a firefighter (2004 only).

     Respondent determined and in due course assessed

deficiencies in petitioner and intervenor’s Federal income taxes

for 2004 and 2005.    As best can be determined from the record,

those deficiencies were attributable to the disallowance of

various deductions claimed on each of those returns.3

     In connection with their divorce in April 2006 petitioner

and intervenor entered into a “Mediated Settlement Agreement”

(the agreement).4    The agreement provides that the marital



     2
      It is   unclear whether petitioner reviewed either return.
It is clear   that she provided information necessary for the
preparation   of each return and that she consented (albeit
reluctantly   for 2005) to the returns’ being prepared and filed on
her behalf.
     3
      The record does not specifically identify which deductions
were disallowed.
     4
      The date of the agreement cannot be determined. It is also
unclear whether the entire agreement has been placed into the
record.
                                - 5 -

residence was to be sold and the net proceeds split equally

between petitioner and intervenor, and it also addresses and

resolves a variety of issues that typically arise when a marriage

is terminated by divorce.    As best we can determine from what has

been submitted, the agreement is silent regarding the allocation

of existing, potential, or expected Federal income tax

liabilities arising from the 2004 and 2005 joint returns.

     On December 28, 2007, petitioner timely submitted a Form

8857, Request for Innocent Spouse Relief (request for relief),

requesting relief pursuant to subsections (b), (c), and (f) of

section 6015 for the years 2004 and 2005.

                             Discussion

     In general, married taxpayers may elect to file a joint

Federal income tax return.   Sec. 6013(a).   After making the

election for a year, each spouse is jointly and severally liable

for the entire Federal income tax liability assessed for that

year, whether as reported on the joint return or subsequently

determined to be due.   Sec. 6013(d)(3); see sec. 1.6013-4(b),

Income Tax Regs.   Subject to various conditions and in a variety

of ways set forth in section 6015, an individual who has made a

joint return with his or her spouse for a year may seek relief

from the joint and several liability arising from that joint

return.
                               - 6 -

      Three types of relief are available under section 6015.   In

general, subsection (b)(1) provides full or apportioned relief

from joint and several liability, subsection (c) provides

proportionate tax relief to divorced or separated taxpayers, and

subsection (f) provides equitable relief from joint and several

liability if relief is not available under subsection (b) or (c).

Except as provided in section 6015(c)(3)(C), the burden of proof

is upon the taxpayer to establish entitlement to section 6015

relief.   See Rule 142(a); Alt v. Commissioner, 119 T.C. 306, 311

(2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004).

A.   Section 6015(b)

      Section 6015(b) provides relief from joint and several

liability for tax (including interest, penalties, and other

amounts) if, as relevant here and among other requirements, the

requesting spouse establishes there is an understatement of tax

on the return which is attributable to erroneous items of the

nonrequesting spouse.   Sec. 6015(b)(1); see Alt v. Commissioner,

supra at 313.

      The parties have not specified, and we are unable to divine,

what the “erroneous items” attributable to intervenor are for

either year in issue.   Although the relevant returns have been

provided, neither notice of deficiency has.   Respondent’s opening

statement suggests that the deficiency for each year results from

the disallowance of “all of the itemized deductions” claimed on
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the joint return for each of those years, but Evidence 101

informs us that statements made during an opening statement do

not constitute evidence.    Furthermore, the only evidence on the

point, petitioner’s testimony, does nothing more than demonstrate

the uncertainty regarding what deductions were disallowed for

either year.

      Because we cannot tell what the “erroneous items” for either

year were, we can hardly find which, if any, of those items were

attributable to intervenor and not to petitioner.    Without such a

fundamental finding, petitioner’s request for relief under

section 6015(b) for 2004 and 2005 fails even before and without

considering respondent’s contention that she knew or had reason

to know of the understatement for each year.    Petitioner is not

entitled to relief under section 6015(b) for either year in

issue.

B.   Section 6015(c)

      Subject to a variety of conditions, section 6015(c) permits

an individual to elect to limit the liability arising from a

joint Federal income tax deficiency to the portion of the

deficiency that is properly allocable to the electing individual

under section 6015(d).     Estate of Capehart v. Commissioner, 125

T.C. 211, 214 (2005); Barnes v. Commissioner, T.C. Memo. 2004-

266; sec. 1.6015-3(a), Income Tax Regs.    In general, an item that

gives rise to a deficiency on a joint Federal income tax return
                               - 8 -

will be allocated to the individuals who filed the joint return

in the same manner as that item would have been allocated had

those individuals filed separate returns.   Sec. 6015(d)(3)(A);

see also sec. 1.6015-3(d)(2), Income Tax Regs.

     At least as between petitioner and respondent, it appears

that petitioner has provided information that shows the portion

of the deficiency for each year that is allocable to her.   See

sec. 6015(c)(2).   Petitioner’s request for relief apparently

included an attachment that contained such an allocation for each

year, but that attachment has not been provided to the Court.

     Because respondent has not challenged petitioner’s

allocation of the deficiency for either year, we assume, without

finding, that the allocation was acceptable to respondent, and we

turn our attention to respondent’s contention that petitioner is

not entitled to relief under section 6015(c) for either year

because she had actual knowledge of the items giving rise to the

portion of the deficiency allocable to intervenor.    The burden of

proving petitioner’s actual knowledge rests with respondent.    See

sec. 6015(c)(3)(C).

     “Sauce for the goose is sauce for the gander.”   The American

Heritage Dictionary of Idioms 557 (2003).   As previously

discussed, the lack of evidence regarding the items giving rise

to the deficiency constrained us to find that petitioner failed

to meet her burden of proving entitlement to section 6015(b)
                                  - 9 -

relief.   The same lack of evidence constrains us to find that

respondent has failed to meet his burden of proof under section

6015(c)(3)(C).   After all, if we cannot tell from the record what

the items giving rise to the deficiency for each year were, we

can hardly find that petitioner had actual knowledge of any of

those items.

      Because petitioner has otherwise satisfied the requirements

of section 6015(c), she is entitled to relief under that section.

We leave it to the parties’ Rule 155 computations to reflect the

application of section 6015(d) to such relief.        See sec.

6015(c)(1).

C.   Section 6015(f)

      Relief under section 6015(f) is available to a taxpayer if

“relief is not available to such individual under subsection (b)

or (c)” of section 6015.   Sec. 6015(f)(2).       Because we find that

petitioner is entitled to relief under section 6015(c), we need

not consider whether petitioner is entitled to relief under

section 6015(f).

      To reflect the foregoing,


                                          Decision will be entered

                                  under Rule 155.
