                  T.C. Summary Opinion 2005-128



                     UNITED STATES TAX COURT



                TAMMY DEBRA MARTIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 15635-04S, 15636-04S.     Filed August 22, 2005.


     Tammy Debra Martin, pro se.

     Lorianne D. Masano, for respondent.



     DEAN, Special Trial Judge:    These consolidated cases were

heard pursuant to the provisions of section 7463 of the Internal

Revenue Code as in effect at the time the petitions were filed.

Unless otherwise indicated, subsequent section references are to

the Internal Revenue Code of 1986 as amended, and Rule references

are to the Tax Court Rules of Practice and Procedure.    The

decisions to be entered are not reviewable by any other court,

and this opinion should not be cited as authority.
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     The cases arise from petitioner’s election to seek relief

from joint and several liability under section 6015 for Federal

income taxes for 1996 and 1997.   Respondent issued to petitioner

notices of determination that she is not entitled to relief under

section 6015(f).

     The issue for decision is whether respondent’s determination

for each year that petitioner is not entitled to relief under

section 6015(f) is an abuse of discretion.

                            Background

     The stipulated facts and the exhibits received into evidence

are incorporated herein by reference.    At the time the petitions

in these cases were filed, petitioner resided in Anthony,

Florida.

     Petitioner filed her 1996 Federal income tax return jointly

with her then husband, Mark J. Martin (husband), on February 12,

1998.   Her joint Federal income tax return for 1997 was filed

shortly thereafter, on April 15, 1998.   Both returns were filed

without remittance.   It does not appear that petitioner

significantly benefited from the failure to pay tax beyond normal

support.

     Petitioner and her husband received a judgment of

dissolution of marriage in Illinois on April 27, 2002.

Petitioner sent to respondent a Form 8857, Request for Innocent

Spouse Relief, dated October 6, 2003.
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                             Discussion

     Generally, married taxpayers may elect to file a joint

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

election, each spouse is jointly and severally liable for the

entire tax due.   Sec. 6013(d)(3).   A spouse, however, may seek

relief from joint and several liability under section 6015.     To

obtain relief from liability, a spouse must qualify under section

6015(b), or if eligible, may allocate liability under section

6015(c).   In addition, if relief is not available under section

6015(b) or (c),1 a spouse may seek equitable relief under section

6015(f).   Fernandez v. Commissioner, 114 T.C. 324, 329-331

(2000); Butler v. Commissioner, 114 T.C. 276, 287-292 (2000).

The Court’s review of determinations under section 6015(f) is not

limited to the Commissioner’s administrative record.      Ewing v.

Commissioner, 122 T.C. 32, 44 (2004).

     Except as otherwise provided in section 6015, the taxpayer

bears the burden of proof.   Rule 142(a); Alt v. Commissioner, 119

T.C. 306, 311 (2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004).

     Section 6015(f) grants the Commissioner discretion to

relieve from joint and several liability an individual who files

a joint return.   Because relief from the 1996 and 1997



     1
      Because petitioner seeks relief from an underpayment of tax
for each year rather than an understatement, relief under
subsecs. (b) and (c) of sec. 6015 is not available. See
Washington v. Commissioner, 120 T.C. 137, 145-147 (2003).
                               - 4 -

underpayments is not available to petitioner under section

6015(b) or (c), she has satisfied one of the two prerequisites

for relief under section 6015(f).

     The other prerequisite is that it is inequitable to hold the

individual liable for the unpaid tax, taking into consideration

all of the facts and circumstances.    As contemplated by section

6015(f), the Commissioner has prescribed guidelines in Rev. Proc.

2000-15, sec. 4.02, 2000-1 C.B. 447, 448, to be used in

determining whether an individual qualifies for relief under that

section.2   Rev. Proc. 2000-15, sec. 4.01, 2001-1 C.B. at 448,

sets forth the threshold conditions that must be satisfied before

the Commissioner will consider a request for equitable relief

under section 6015(f).   Respondent does not dispute that

petitioner has satisfied the threshold conditions.

     Where the requesting spouse satisfies the threshold

conditions set forth in Rev. Proc. 2000-15, sec. 4.01, Rev. Proc.

2000-15, sec. 4.02 sets forth the circumstances under which the

Commissioner will ordinarily grant relief to that spouse under

section 6015(f).




     2
      The guidelines applicable herein are set forth in Rev.
Proc. 2000-15, 2000-1 C.B. 447, which was in effect at the time
petitioner’s request for relief was made, Oct. 15, 2003. Rev.
Proc. 2000-15, supra, has been superseded by Rev. Proc. 2003-61,
2003-2 C.B. 296, effective for requests for relief filed on or
after Nov. 1, 2003.
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     Respondent determined that petitioner has not shown that, at

the time each return was signed, she had no knowledge or reason

to know that the tax would not be paid.     Respondent also

determined that she has failed to show that she would suffer

economic hardship if relief were not granted.     Respondent

therefore concluded that petitioner has failed to satisfy all of

the elements of Rev. Proc. 2000-15, sec. 4.02, and does not

qualify for relief under section 6015(f).

     Petitioner’s Form 12510, Questionnaire for Requesting

Spouse, indicates that her only checking account was a joint

checking account with her husband.     Petitioner did not work

outside of the home, and her husband’s paycheck was deposited by

petitioner into the account.   Petitioner wrote checks for all of

the family bills from the account.     She reviewed bank statements

and picked up all household mail.    The returns for both years,

marked “self-prepared”, reflect no withholding or estimated tax

payments.   Almost all of petitioner’s testimony at trial

consisted of her alleging that she did not know that in signing

the returns she would be jointly and severally liable for the

income tax liabilities.

     The Court concludes from the evidence that if petitioner did

not choose to write a check for the tax liability for either

year, the liabilities would not be paid.     Petitioner offered no

explanation as to why she might have reason to think that the
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taxes would be paid if she did not pay them.   The Court finds

that petitioner has not shown that at the time she signed the

returns she had no reason to know that the taxes would not be

paid.

     In determining whether a requesting spouse will suffer

economic hardship if relief is not granted, Rev. Proc. 2000-15,

supra, looks to section 301.6343-1(b)(4), Proced. & Admin. Regs.,

for guidance.   Rev. Proc. 2000-15, sec. 4.02(1)(c), 2000-1 C.B.

at 448.   Economic hardship is present if satisfaction of the tax

liability in whole or in part will cause the taxpayer to be

unable to pay reasonable basic living expenses.   Sec.

301.6343-1(b)(4), Proced. & Admin. Regs.   Petitioner offered no

evidence that payment of part or all of the taxes due would cause

her financial hardship.

     Where, as here, the requesting spouse fails to qualify for

relief under Rev. Proc. 2000-15, sec. 4.02, the Commissioner may

nonetheless grant the requesting spouse relief under Rev. Proc.

2000-15, sec. 4.03.   Rev. Proc. 2000-15, sec. 4.03(1) and (2),

2000-1 C.B. at 448, sets forth six positive and six negative

factors that are to be considered in determining whether to grant

relief.   The revenue procedure makes clear that no single factor

is to be determinative in any particular case, that all factors

are to be considered and weighed appropriately, and that the list

of factors is not intended to be exhaustive.
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     The knowledge or reason to know factor, the economic

hardship factor, and the legal obligation to pay factor in Rev.

Proc. 2000-15, sec. 4.03(2)(b), (d), and (f), respectively, are

the opposites of the knowledge or reason to know factor, the

economic hardship factor, and the legal obligation to pay factor

in Rev. Proc. 2000-15, sec. 4.03(1)(d), (b), and (e),

respectively.   The attribution factor in Rev. Proc. 2000-15, sec.

4.03(2)(a) is substantially the opposite of the attribution

factor in Rev. Proc. 2000-15, sec. 4.03(1)(f).   Consequently, in

the Court’s review of the Commissioner’s determination denying

relief under section 6015(f), the Court has held that a finding

with respect to the reason to know, economic hardship, legal

obligation, and attribution factors ordinarily will weigh either

in favor of or against granting equitable relief under section

6015(f).   Ewing v. Commissioner, 122 T.C. at 45.   The Court has

also held that a finding that a requesting spouse did not receive

a significant benefit from the item giving rise to the deficiency

weighs in favor of granting relief under section 6015(f).     Id.

Finally, the Court treats evidence that the remaining positive

and negative factors are not applicable as evidence weighing

neither in favor of nor against granting equitable relief (i.e.,

as neutral).    Id.

     In favor of petitioner here are the factors of marital

status, attribution, and failure to significantly benefit beyond
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normal support.    Petitioner’s failure to show that she had no

reason to know that the taxes would not be paid, and that payment

of part or all of the taxes would cause her economic hardship are

negative factors.    Under Rev. Proc. 2000-15, sec. 4.03(2)(b),

reason to know that the tax would not be paid “is an extremely

strong factor weighing against relief.”    The revenue procedure

provides that “when the factors in favor of equitable relief are

unusually strong, it may be appropriate to grant relief under

section 6015(f) in limited situations” where the spouse

requesting relief had reason to know of the understatement.       Id.

The Court finds no “unusually strong” factors in favor of

equitable relief here.

     Petitioner has alleged that she suffered abuse at the hands

of her husband.   If true, it would be another factor in her

favor.    Rev. Proc. 2000-15, sec. 4.03(1)(c), 2000-1 C.B. at 444.

The record includes copies of several “Miscellaneous Incident”

reports prepared by officers of the Glen Ellyn police department.

The reports, most of which postdate the years at issue, do show

that petitioner and her husband often did not get along:    They

argued loudly and, on one occasion, engaged in a “mutual shoving

match”.   The reports do not, however, show that petitioner was

“abused” by her husband.

     Petitioner has three factors in her favor and two that weigh

against her.   In view of the language of Rev. Proc. 2000-15, sec.
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4.03(2)(b), that knowledge that the tax would not be paid is an

“extremely strong factor”, the Court finds, considering all the

facts and circumstances, that respondent did not abuse his

discretion in denying petitioner equitable relief from joint and

severable liability under section 6015(f).

     Reviewed and adopted as the report of the Small Tax Case

Division.


                                           Decisions will be entered

                                      for respondent.
