                  T.C. Summary Opinion 2003-116



                     UNITED STATES TAX COURT



               SHIRLEY WESTERHUIS, Petitioner, AND
                 WILLIAM R. TIPPING, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9568-02S.            Filed August 20, 2003.


     Shirley Westerhuis, pro se.

     William R. Tipping, pro se.

     J. Michael Melvin, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.   The decision to be



1
   Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

entered is not reviewable by any other court, and this opinion

should not be cited as authority.

     This is a so-called stand alone innocent spouse case arising

under section 6015(f).    Petitioner applied for relief from joint

tax liability for the 1997 taxable year.      Respondent determined

that petitioner was not entitled to such relief.      Petitioner

filed a timely petition under section 6015(e).      Intervenor,

petitioner’s former husband, filed a Notice of Intervention under

Rule 325(b) and opposes such relief.      The issue is whether

respondent’s denial of relief under section 6015(f) was an abuse

of discretion.   Petitioner resided in Cocoa, Florida, at the time

the petition was filed.

                             Background

     The facts may be summarized as follows.      During 1997,

petitioner and intervenor were married.      Petitioner was employed

by Ameripath Florida, Inc., and had wage income of $41,823.25

during 1997.   Intervenor lost his job in early 1997, and in

August 1997 he decided to return to school for further education.

He also took a part-time job at Sea World of Florida, Inc.,

earning approximately $7 per hour.      In order to help pay their

living expenses and accumulated debts, intervenor withdrew

$14,363 from an individual retirement account (IRA).

     Petitioner and intervenor were divorced in January 1998.

For the taxable year 1997, petitioner and intervenor filed a
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joint Federal income tax return.   They reported on that return

the IRA disbursement of $14,363.   In computing the tax due they

included the early distribution additional tax under section

72(t).   The return showed that they owed $2,979.    That amount was

not paid when the return was filed.

     At the time of the divorce petitioner and intervenor owned a

residence.   Originally the residence was to be sold, and each was

to receive half of the proceeds.   Subsequently, the residence was

ordered deeded to petitioner, and petitioner was ordered to

“continue to pay the joint debts”.      Petitioner was represented by

an attorney during these proceedings.     The house was eventually

sold in 2000, and petitioner received approximately $20,000.

     Petitioner filed individual 1998 and 1999 Federal income tax

returns.   Each return showed that she was due a refund.

Respondent applied these overpayments to the amount not paid on

the 1997 tax liability.

                            Discussion

     A requesting spouse may elect relief from joint and several

liability under section 6015.   There are three types of relief

available:   (1) Section 6015(b)(1) provides full relief from

joint and several liability; (2) section 6015(c) provides

separate tax liability available to divorced or separated

taxpayers; and (3) section 6015(f) provides equitable relief from

joint and several liability in certain circumstances if section
                                    - 4 -

6015(b) and (c) are unavailable.       Petitioner is not eligible for

relief under either section 6015(b) or (c).

        Section 6015(f) provides:

             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 individual
             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.

        To prevail, petitioner must show that respondent’s denial of

equitable relief under section 6015(f) was an abuse of

discretion.     Jonson v. Commissioner, 118 T.C. 106, 125 (2002);

Cheshire v. Commissioner, 115 T.C. 183, 198 (2000), affd. 282

F.3d 326 (5th Cir. 2002); Butler v. Commissioner, 114 T.C. 276,

292 (2000).     As directed by section 6015(f), the Commissioner

prescribed procedures to use in determining whether the

requesting spouse qualifies for relief under section 6015(f).

Those procedures are found in Rev. Proc. 2000-15, 2000-1 C.B.

447.2    The revenue procedure includes a partial list of the

positive and negative factors to be considered, including whether

the requesting spouse is divorced, whether the requesting spouse



2
   Rev. Proc. 2000-15, sec. 3, 2000-1 C.B. 447, 448, is
applicable for any liability for tax arising on or before July
22, 1998, that was unpaid on that date.
                               - 5 -

would suffer undue economic hardship, whether the requesting

spouse “had no reason to know that the liability would not be

paid”, and whether the requesting spouse significantly benefited

beyond normal support from the unpaid liability.    See Rev. Proc.

2000-15, sec. 4.03(1) and (2), 2000-1 C.B. at 448-449.    “No

single factor will be determinative of whether equitable relief

will or will not be granted in any particular case.    Rather all

factors will be considered and weighed appropriately.”    Rev.

Proc. 2000-15, sec. 4.03, 2000-1 C.B. at 448.

     Petitioner executed the 1997 return voluntarily.    The unpaid

amount was clearly shown on the return that she executed.    She

must have known that there was an amount owing, or at the very

least had reason to know that there was an unpaid tax liability.

It may be, as petitioner testified, that she thought that the

unpaid tax liability would be paid by intervenor.    But, under the

ultimate property decree entered on July 28, 1999, 18 months

after the original decree, the house was transferred to

petitioner with the understanding that she would continue to pay

the joint debts.   We note that petitioner’s 1998 overpayment was

credited against the 1997 tax liability on April 15, 1999, 3

months before the final decree was entered.   It would seem that

at least by then she was aware that the 1997 tax liability had

not been paid.   Nonetheless, she agreed that she would continue

to pay the joint debts.
                               - 6 -

     Furthermore, we find no basis for concluding that petitioner

would suffer undue financial hardship in being liable for the

1997 tax liability.   She maintained her employment, and during

1998 and 1999 had gross income of $49,469 and $51,179,

respectively.   Moreover, she received $20,000 from the sale of

the residence in 2000.

     Finally, it should be noted that, while petitioner may not

have significantly benefited from the funds withdrawn from the

IRA, the funds were used in great part for living expenses of

both petitioner and intervenor.

     In sum, we find that no factors considered support the

conclusion that petitioner is entitled to relief under section

6015(f) and that respondent’s denial of relief was an abuse of

discretion.3

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                            Decision will be entered

                                       for respondent.




3
   Because of our disposition on the ground that petitioner is
not entitled to relief, we need not discuss whether this Court
has jurisdiction to order a refund to petitioner for 1998 and
1999.
