                   T.C. Summary Opinion 2003-71



                      UNITED STATES TAX COURT



               PAMELA RENEE WIGGINS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4118-01S.             Filed June 11, 2003.



     Pamela Renee Wiggins, pro se.

     Dustin M. Starbuck, for respondent.



     CARLUZZO, Special Trial Judge:   This case was filed in

accordance with the provisions of sections 6015(e)(1) and 7463 of

the Internal Revenue Code in effect at the time the petition was

filed.   The decision to be entered is not reviewable by any other

court, and this opinion should not be cited as authority.

     In reliance upon the provisions of section 6015, petitioner

made an administrative request for relief from a 1992 Federal
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income tax liability.    That liability is based in part on an

unpaid liability reported on a timely filed joint 1992 Federal

income tax return, and in part upon a deficiency determined and

assessed several years later.    Petitioner’s request was denied in

a notice of final determination issued by respondent on February

21, 2001.    She timely petitioned this Court for review of

respondent’s determination.    See sec. 6015(e).

     The issue for decision is whether respondent’s refusal to

relieve petitioner from liability under section 6015 with respect

to a 1992 Federal income tax liability is an abuse of discretion.

We hold that it was not, but for a reason other than that

advanced by respondent.

Background

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

the time the petition was filed, petitioner resided in Roanoke,

Virginia.

     Petitioner and Peter Stimeling (Mr. Stimeling) were married

to each other on June 9, 1990.    They separated in February 1993

and were divorced on October 25, 1994.    During 1992, petitioner

and Mr. Stimeling worked together as employees of Valley View

Associates, Ltd.    Each received a Form W-2, Wage and Tax

Statement, for that year on which the following information is

reported:
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                        Wages            Federal Income Tax W/H

Petitioner             $23,708                  $3,001

Mr. Stimeling           34,707                   5,078


During 1992, Mr. Stimeling was also the sole proprietor of S&S

Repairs, a business that provided janitorial and repair services.

     Mr. Stimeling asked petitioner if she would agree to file a

joint 1992 Federal income tax return, even though they were

separated at the time and soon to be divorced.       Petitioner

agreed, expecting to see and sign the return after it had been

prepared and before it was mailed to be filed.       In prior years

(presumably 1990 and 1991), petitioner filed joint Federal income

tax returns with Mr. Stimeling.    For each of those years the

return was prepared by a paid income tax return preparer,

reviewed by petitioner, and signed by petitioner.

     The same paid income tax return preparer that had prepared

petitioner’s returns for previous years prepared what purports to

be a joint 1992 Federal income tax return for petitioner and Mr.

Stimeling (the joint return).    The joint return was received,

timely filed, and processed by respondent.       The income reported

on the joint return consists of the wages reported on the above-

mentioned Forms W-2 and the net profit reported on a Schedule C,

Profit or Loss From Business, for S&S Repairs.       Taxable income

reported on the joint return is computed taking into account

itemized deductions.    The “total tax” liability reported on the
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joint return, i.e., $13,643, takes into account the section 1 tax

applicable to the taxable income reported on the joint return and

the section 1401 tax (self-employment tax) applicable to the net

profit reported on the Schedule C.      Against this amount, Federal

income tax withholdings, as reported on the above-mentioned Forms

W-2, are applied, resulting in an amount due of $5,768, none of

which was paid with the joint return.

     Petitioner neither reviewed nor signed the joint return.

She did not authorize Mr. Stimeling to sign this or any other

Federal income tax return on her behalf.

     Toward the end of 1993 or the beginning of 1994, petitioner

learned that respondent was attempting to garnish the wages of

Mr. Stimeling in order to collect the then-outstanding 1992

Federal income tax liability.   In order to avoid having her own

wages garnished (and to avoid the attendant embarrassment in her

workplace), she entered into an installment agreement with

respondent with respect to that liability.     She made the

following payments in accordance with that installment agreement:

               Date                        Payment

          January 27, 1994                  $175

          February 7, 1994                   175

          February 25, 1994                  175

          March 29, 1994                     175

          April 28, 1994                     175
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Thereafter, refunds claimed on her individual Federal income tax

returns filed for the years 1993, 1994, and 1995 were applied to

the outstanding 1992 liability as follows:

                Date                       Amount of Refund

     August 25, 1995 (1993 refund)              $1,342

     August 25, 1995 (1994 refund)               1,876

     April   15, 1996 (1995 refund)                807

     On May 23, 1995, respondent issued a notice of deficiency to

petitioner and Mr. Stimeling that indicated respondent had

determined a deficiency of $588 in their 1992 Federal income tax.

The deficiency results from the reduction of a claimed itemized

deduction for interest expense and inclusion of interest income

not reported on the joint return.     A petition to this Court was

not filed in response to that notice and the deficiency was

assessed.

     On September 25, 1995, petitioner filed an individual 1992

Federal income tax return as a married person filing a separate

return (the separate return).   On the separate return, petitioner

(1) reported the wages previously attributed to her on the joint

return; (2) included what appears to be the interest income

referenced in the notice of deficiency; and (3) computed her

Federal income tax liability taking into account the standard

deduction appropriate to her filing status.    She applied the

Federal income tax withholdings from her wages taken into account
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previously on the joint return against the tax shown on the

return and claimed a refund of $141, which she received in due

course.

     In a Form 8857, Request for Innocent Spouse Relief, signed

by petitioner and dated November 5, 1998, petitioner requested

section 6015 relief.   The Form 8857 used by petitioner does not

reflect the repeal of section 6013(e) and enactment of section

6015.   Nevertheless, it appears that respondent considered her

claim in accordance with the provisions of section 6015.   In this

regard, on February 21, 2001, in a notice of final determination,

respondent advised petitioner that she was not entitled to relief

under subsections (b), (c), or (f) of section 6015.

Discussion

     We are somewhat perplexed by the series of events just

described.   Of particular concern is the fact that the untimely

separate return was processed after respondent had previously

treated the joint return as petitioner’s and issued a notice of

deficiency to her based upon the information and items reported

on the joint return.

     In her administrative request for relief petitioner

apparently claimed that she neither authorized nor consented to

the joint return.   Petitioner’s claim on this point was addressed

in a letter dated April 29, 2002, in which respondent’s Appeals

officer stated:
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     It would appear that you allowed your husband to
     prepare a joint return and to sign your name to it.
     You filed a separate return 30 months later. That
     action and the other facts of the case are consistent
     with changing one’s mind, not with having the intent
     to file separately initially.

Based upon that conclusion, which is inconsistent with the

treatment of the separate return, respondent’s consideration of

petitioner’s claim for section 6015 relief proceeded as though

petitioner filed a joint Federal income tax return for 1992.

     In the petition, petitioner alleges that, with respect to

the joint return, Mr. Stimeling “filed our 1992 taxes without my

signature. * * * I kept asking him when I was going to need to

sign it.   Finally he told me he had signed it.”   At trial,

petitioner readily admitted that she agreed to file a joint

return with Mr. Stimeling, but with the expectation that before

the return was filed she would have the opportunity to review and

sign the return.   She further explained that she agreed to the

installment agreement in order to avoid embarrassment in her work

place.

     Petitioner’s credible trial testimony supports the

allegations made in the petition.    Petitioner did not review or

sign the joint return before it was filed.   Furthermore, we

accept her claim that she did not authorize her former spouse to

sign her name to the joint return.

     Respondent’s reasons for processing the separate return

after the joint return have not been explained.    Nevertheless,
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we are satisfied that the separate return is petitioner’s 1992

Federal income tax return, and, under the circumstances, the

joint return was not made pursuant to a valid election on

petitioner’s part.   Cf. Cassity v. Commissioner, T.C. Memo. 1987-

181; see sec. 1.6013-1(a)(2), Income Tax Regs., sec. 1.6061-1(a),

Income Tax Regs.   Petitioner’s agreement to file a joint return

with Mr. Stimeling at his request did not authorize him to sign

the return on her behalf or to file it without first allowing her

to review it.

     It follows that petitioner’s request for section 6015 relief

from the 1992 Federal income tax liability currently assessed

against her must be denied because she did not file a joint

return for that year.1    See Raymond v. Commissioner, 119 T.C.

191, 195-197 (2002).     Respondent’s denial of section 6015 relief

for that year, albeit based upon different grounds and perhaps

ironically, cannot be considered an abuse of discretion.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,



                                         Decision will be entered

                                 for respondent.


     1
       Taking into account the sec. 6511 period of limitations,
petitioner’s remedy, if any, appears to be a traditional claim
for refund.
