                      T.C. Summary Opinion 2008-4


                        UNITED STATES TAX COURT



                   MARY ELLEN LEPORDO, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 12911-06S.             Filed January 7, 2008.



        Mary Ellen Lepordo, pro se.

        Louise R. Forbes, for respondent.



     DEAN, Special Trial Judge:       This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.      Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.     Unless otherwise indicated, subsequent section references
                                 - 2 -

are to the Internal Revenue Code as amended, and all Rule

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

     This case arises from requests for innocent spouse relief

under section 6015(f) with respect to petitioner’s tax

liabilities for 1996 and 1998 through 2002.    No notices of

deficiency were issued except for 2000.1    Petitioner filed Forms

8857, Request for Innocent Spouse Relief (And Separation of

Liability and Equitable Relief), seeking equitable relief under

section 6015(f) for each year.    Respondent determined that

petitioner was not entitled to relief under section 6015(f) for

1996, 1998, 1999, 2001, and 2002.    With respect to 2000,

petitioner requested relief of $3,971.88; respondent granted

partial relief of $3,267 under section 6015(c) but found

petitioner liable for $704.88.2    The issues for decision are

whether respondent:   (1) Correctly denied relief as to the

$704.88 under section 6015(c) for 2000; and (2) abused his

discretion when he denied petitioner’s request for innocent

spouse relief for 1996 and 1998 through 2002 under section

6015(f).



     1
        Petitioner and Mr. Lepordo did not file a petition with
the Court, and respondent assessed the $17,701 deficiency.
     2
        Respondent represents that he determined that petitioner
did not have knowledge of Mr. Lepordo’s gambling income and
pension distributions in 2000.
                               - 3 -

                            Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    At the time the petition

was filed, petitioner resided in Somerville, Massachusetts.

     Petitioner is a high school graduate who was employed in

clerical positions during the years at issue.    Petitioner and

Joseph J. Lepordo filed a joint Form 1040, U.S. Individual Income

Tax Return, for each of the years at issue.    The Federal income

tax returns for 1996 and 1999 showed tax due in excess of the

remittances.   For 1998, 2001, and 2002, the Federal income tax

returns were filed without remittances for the tax reported.

With respect to 2000, respondent determined a $17,701 deficiency

in the notice of deficiency mailed to petitioner and Mr. Lepordo

on August 9, 2002.   The deficiency was assessed when they failed

to file a petition with the Court.     The taxable years and the tax

due for each year are summarized as follows:

          Year                         Tax before credits

          1996                              $8,598
          1998                              14,508
          1999                              13,871
          2000                              17,701
          2001                              18,089
          2002                              15,484

     On April 21, 2003, the Internal Revenue Service (IRS)

issued to petitioner and Mr. Lepordo a notice of intent to levy

with respect to 1996.   On September 9, 2003, petitioner and Mr.
                                - 4 -

Lepordo submitted an offer-in-compromise that was rejected on

February 9, 2004.    Mr. Lepordo subsequently passed away on

February 24, 2004.    Thereafter, petitioner submitted an offer-in-

compromise for $1,500 that was rejected on March 25, 2005.

Apparently, petitioner’s second offer-in-compromise for $5,060

was never received, and the IRS cannot find its related

paperwork.

     After petitioner’s offers-in-compromise were rejected or

went unanswered, petitioner’s deceased spouse’s tax preparer

advised her to seek innocent spouse relief.    Petitioner filed

Forms 8857 on May 18, 2005, seeking equitable relief under

section 6015(f) for 1996 and 1998 through 2002.

     On October 12, 2005, respondent issued his preliminary

determinations.   Respondent denied relief for 1996 because

petitioner’s request for relief was untimely since it was

received more than 2 years after the first collection activity.

The first collection activity, a notice of intent to levy,

occurred April 21, 2003, and petitioner’s request was received on

May 18, 2005.   Respondent denied petitioner’s requests for the

years 1998, 2001, and 2002 because she did not satisfy the

criteria for relief.    Evidently, the preliminary determination(s)

for 1999 and 2000, which also cannot be found, denied relief for

1999 and 2000 for the same reasons.
                               - 5 -

     Petitioner appealed the preliminary determinations by

submitting Forms 12509, Statement of Disagreement.     On April 6,

2006, the Appeals Office, without any further explanation, issued

a final determination that sustained the preliminary

determinations with respect to 1996, 1998, 1999, 2001, and 2002.

The final determination granted partial relief of $3,267 under

section 6015(c) with respect to 2000 but found petitioner liable

for $704.88.   Thereafter, petitioner timely filed a petition for

redetermination with the Court.

                            Discussion

Burden of Proof

     Except as otherwise provided in section 6015, petitioner

bears the burden of proof with respect to her entitlement to

innocent spouse relief.   See Rule 142(a); Alt v. Commissioner,

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

2004).

Joint and Several Liability and Section 6015 Relief

     Section 6013(d)(3) provides that if a joint return is filed,

the tax is computed on the taxpayers’ aggregate income, and

liability for the resulting tax is joint and several.     See also

sec. 1.6013-4(b), Income Tax Regs.     But the IRS may relieve a

taxpayer from joint and several liability under section 6015 in

certain circumstances.
                               - 6 -

Section 6015(c): Relief for Taxpayers No Longer Married, Legally
Separated, or Not Living Together

     Although petitioner stated in her request for relief that

she was seeking relief under section 6015(f) with respect to an

underpayment for each year, respondent’s final determination

granted partial relief of $3,267 with respect to the 2000

deficiency under section 6015(c) and found petitioner liable for

$704.88.   Accordingly, the Court reviews respondent’s

determination pursuant to section 6015(c).

     Section 6015(c)(1) provides proportionate relief for any

deficiency that was assessed if a joint return was filed and, at

the time the election was made, the spouses were no longer

married, they were legally separated, or they had lived apart for

the 12-month period ending on the date the election was filed.

     Generally, the individual may elect to be treated as if

separate returns were filed, and liability is limited to that

portion of the deficiency that is properly allocable to the

electing spouse.   See sec. 6015(c)(1), (d)(3).   The electing

spouse bears the burden of proving the amount of the deficiency

that is allocable to him except in limited circumstances.    Sec.

6015(c)(2).   If the IRS proves that the electing spouse had

actual knowledge, at the time he signed the return, of any item

giving rise to the deficiency and the item was allocable to the

nonelecting spouse, then the election is invalid with respect to
                               - 7 -

the portion of the deficiency that is attributable to the item.

See sec. 6015(c)(3)(C); sec. 1.6015-3(c)(2), Income Tax Regs.3

     The knowledge standard for purposes of section 6015(c)(3)(C)

is an actual and clear awareness of the existence of the item

giving rise to the deficiency (or the portion thereof).    See

Cheshire v. Commissioner, 115 T.C. 183, 194 (2000), affd. 282

F.3d 326 (5th Cir. 2002).   The knowledge standard does not

require the requesting spouse to possess actual knowledge of the

tax consequences arising from the item giving rise to the

deficiency.   See id.; see also Mitchell v. Commissioner, 292 F.3d

800, 805 (D.C. Cir. 2002), affg. T.C. Memo. 2000-332; Hopkins v.

Commissioner, 121 T.C. 73, 86 (2003).

     For 2000, petitioner and Mr. Lepordo submitted to respondent

a signed Form 1040 that omitted all income, deductions, and tax

computations.   Attached to the return was a Form W-2, Wage and

Tax Statement, for Mr. Lepordo from Signature Flight Support

showing wages of $59,084.24 and a Form W-2 for petitioner from

Harvard Vanguard Medical Associates showing wages of $27,607.40.

With their tax return and attached forms, petitioner and Mr.

Lepordo enclosed a $2,713 check and a letter signed by petitioner

and Mr. Lepordo, stating that a Form W-2 was missing and

requesting that the IRS compute their taxes.




     3
        Secs. 1.6015-0 through 1.6015-9, Income Tax Regs., are
applicable for all elections under sec. 6015 filed on or after
July 18, 2002. Sec. 1.6015-9, Income Tax Regs.
                               - 8 -

     Respondent examined petitioner’s and Mr. Lepordo’s 2000 Form

1040 and made three adjustments to income:    (a) Total wages of

$86,691 ($59,084 + $27,607); (b) $13,632 in taxable pension and

annuity income received by Mr. Lepordo; and (c) $1,791 in

gambling income received by Mr. Lepordo.   The adjustments

resulted in a net tax due of $6,758 as of the date of the notice

of deficiency, consisting of the $17,701 deficiency

determination, a $1,041 accuracy-related penalty under section

6662, $512 of interest due, and $12,496 of withholding credits.4

     Respondent granted petitioner partial relief of $3,267,

determining that she had no knowledge of Mr. Lepordo’s gambling

income and pension distributions.   Respondent denied relief as to

$704.88.   Although it is not clear from the record, the Court

assumes that respondent’s denial of relief was due to a

determination to allocate petitioner’s salary to her and to

ascribe to petitioner actual knowledge of Mr. Lepordo’s salary

because of the Form W-2 enclosed with the letter and the blank

2000 return.   See sec. 6015(c)(2), (3)(C).   To the extent that

this is not so, it was petitioner’s burden to establish the

portion of the deficiency that was not allocable to her.     See

sec. 6015(c); sec. 1.6015-3(d)(3), Income Tax Regs. (stating that

the electing spouse has the burden to establish the proper




     4
        The Court assumes that the payment of $2,713 has been or
will be credited to the joint liability.
                                 - 9 -

allocation and that none of the other limitations apply; i.e.,

disqualified asset transfers).

     Petitioner did not establish that the IRS’s $704.88

computation was incorrect or that a more favorable calculation

was appropriate.     See sec. 1.6015-3(d)(4)(i) and (ii), (5), and

(6), Income Tax Regs. (discussing proportionate allocation, the

allocation of separate return items and their effect on the

requesting spouse’s liability, and alternative allocation

methods).    Therefore, petitioner is not entitled to relief under

section 6015(c) with respect to the $704.88 for which respondent

found her liable.5    Accordingly, respondent’s determination with

respect to the $704.88 for 2000 under section 6015(c) is

sustained.

Section 6015(f):     Equitable Relief

     The IRS may relieve an individual from joint and several

liability under section 6015(f) if, taking into account all the

facts and circumstances, it is inequitable to hold the taxpayer




     5
         Whether petitioner qualifies for sec. 6015(f) relief
with respect to the $704.88 is discussed below. See Hopkins v.
Commissioner, 121 T.C. 73 (2003) (applying Rev. Proc. 2000-15;
the taxpayer received partial relief under sec. 6015(c), and the
Court went on to review the disallowed portion under sec.
6015(f)); Capehart v. Commissioner, T.C. Memo. 2004-268 (same),
affd. 204 Fed. Appx. 618 (9th Cir. 2006); Rowe v. Commissioner,
T.C. Memo. 2001-325 (same); cf. Baumann v. Commissioner, T.C.
Memo. 2005-31 (applying Rev. Proc. 2003-61; the IRS determined
that the taxpayer did not qualify for relief under sec. 6015(c)
because of her actual knowledge of the item but allowed partial
relief under sec. 6015(f)).
                             - 10 -

liable for any unpaid tax or deficiency and he does not qualify

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

     The Court reviews the IRS’s denial of innocent spouse relief

under section 6015(f) for abuse of discretion.   See Butler v.

Commissioner, 114 T.C. 276, 292 (2000).    Under the abuse of

discretion standard, the Court must determine whether the IRS

exercised its discretion arbitrarily, capriciously, or without

sound basis in fact when it denied the requested relief.     Id.

The Court’s review is limited, and the Court cannot substitute

its judgment for that of the IRS and determine whether in the

Court’s opinion it would have granted relief.    See Patton v.

Commissioner, 116 T.C. 206 (2001); Collectors Training Inst.,

Inc. v. United States, 96 AFTR 2d 2005-6522, 2005-6526, 2005-2

USTC par. 50,626, at 89,727 (N.D. Ill. 2005) (stating that an

abuse of discretion “‘means something more than’ the court’s

belief that it would ‘have acted differently if placed in the

circumstances confronting the’” Appeals officer) (quoting Johnson

v. J.B. Hunt Transp., Inc., 280 F.3d 1125, 1131 (7th Cir. 2002)).

     To guide IRS employees in exercising their discretion, the

Commissioner has issued revenue procedures that list the factors

they should consider; the Court also uses the factors when

reviewing the IRS’s denial of relief.   See Washington v.

Commissioner, 120 T.C. 137, 147-152 (2003); Rev. Proc. 2003-61,
                                - 11 -

2003-2 C.B. 296, modifying and superseding Rev. Proc. 2000-15,

2000-1 C.B. 447.

Rev. Proc. 2003-61, Sec. 4.01:    Seven Threshold Conditions for
Relief

     Rev. Proc. 2003-61, sec. 4.01, 2003-2 C.B. at 297, begins

with a list of seven threshold conditions that a taxpayer must

satisfy in order to qualify for relief under section 6015(f).

The Court will not recite them all.

     With respect to 1996, petitioner fails the third

requirement; i.e., the requesting spouse must apply for relief no

later than 2 years after the date of the IRS’s first collection

activity after July 22, 1998.    See Rev. Proc. 2003-61, sec.

4.01(3), 2003-2 C.B. at 297; cf. sec. 1.6015-5(b)(2), Income Tax

Regs. (defining the term “collection activity” to include a

“section 6330 notice”, which is also defined as the notice the

IRS sends to taxpayers informing them of the IRS’s intent to levy

and their right to request a hearing).

     Respondent entered into evidence a Form 4340, Certificate of

Assessments, Payments, and Other Specified Matters, which shows

that the IRS sent to petitioner a notice of the IRS’s intent to

levy and her right to request a hearing on April 21, 2003.

Petitioner’s Form 8857 was received by the IRS on May 18, 2005.

Because the Form 8857 was received after the expiration of the 2-

year period, the Court concludes that the IRS did not abuse its
                               - 12 -

discretion when it denied relief for 1996.    Accordingly,

respondent’s determination for 1996 is sustained.

       With respect to taxable years 1998 through 2002, respondent

agrees that the IRS determined that petitioner satisfied the

threshold requirements of Rev. Proc. 2003-61, sec. 4.01.

Rev. Proc. 2003-61, Sec. 4.02:    Circumstances Ordinarily
Qualifying for Relief

       Where the requesting spouse satisfies the threshold

conditions of Rev. Proc. 2003-61, sec. 4.01, Rev. Proc. 2003-61,

sec. 4.02, 2003-2 C.B. at 298, sets forth the circumstances in

which the IRS will ordinarily grant relief under section 6015(f)

with respect to the underpayment of a properly reported

liability.    To qualify for relief under Rev. Proc. 2003-61, sec.

4.02, the requesting spouse must:    (1) No longer be married to,

be legally separated from, or not have been a member of the same

household as the nonelecting spouse at any time during the

12-month period ending on the date of the request for relief;

(2) have had no knowledge or reason to know when she signed the

return that the nonelecting spouse would not pay the tax

liability; and (3) suffer economic hardship if relief is not

granted.    See Rev. Proc. 2003-61, sec. 4.02(1), 2003-2 C.B. at

298.

       Petitioner’s husband passed away on February 24, 2004, and

petitioner’s request for relief was received on May 18, 2005.

Condition 1 is satisfied.
                              - 13 -

     The preliminary determination for 1998, 2001, and 2002

states that:   (1) Petitioner’s reliance on Mr. Lepordo to take

care of the tax matters did not establish a reasonable belief

that the taxes would be paid at the time she signed the returns;

(2) the fact that Mr. Lepordo did not have enough taxes withheld

did not support relief; (3) she had knowledge of the unpaid

balances when she signed the returns; (4) she did not establish

that Mr. Lepordo was financially responsible; (5) she did not

establish that Mr. Lepordo took responsibility for any portion of

the unpaid taxes; and (6) she did not establish that Mr. Lepordo

had the funds available or a specific payment plan at the time

she signed the returns.   The preliminary determination(s) for

1999 and 2000 is not in the record.    The final determination

merely states that the IRS was granting partial relief for 2000,

but there is no explanation as to the IRS’s reasons for denying

relief.

     Petitioner testified that she was not involved in the

preparation of the returns, that she just gave her Forms W-2 to

Mr. Lepordo, and his “tax guy did everything.”    Petitioner also

testified that she knew that partial payments were submitted for

some years, while no payments were submitted in other years.

Petitioner testified further that she told Mr. Lepordo that the

taxes had to be paid, but “he told me not to worry about it,

that, * * * he’ll take care of it.”    On her Form 12510,
                              - 14 -

Questionnaire for Requesting Spouse, petitioner claimed that she

was not allowed to question Mr. Lepordo or the return preparer

and that she had no knowledge about how the moneys from the

unpaid taxes were spent.   With respect to their financial

matters, petitioner testified that she had access to their joint

account, but she did not pay any bills.   However, petitioner’s

Form 12510 stated that “mostly my husband” wrote the checks, and

if any checks were written, Mr. Lepordo had to approve them.

     The Court notes, however, that with the 2000 return,

petitioner signed a document that stated:   “I enclosed * * * [a

$2,713 check and] any moneys left over from this check may be

applied to my previous year’s balance still owed.”   And although

the 1996 return is no longer in issue, petitioner submitted a

similar handwritten statement:   “Please find enclosed a check in

the amount of $499.00 towards the money we owe.   Thank you, Mary

Ellen Lepordo”.6

     In view of petitioner’s testimony that she knew at the time

she signed the returns that their returns were submitted with

either partial or no payments and of the other evidence in the

record, the Court finds that she had both actual and constructive



     6
        The Court also notes that because petitioner filed a
separate return for 1997, she knew that she did not have to file
a joint tax return with Mr. Lepordo. Because the Court finds
that this factor favors respondent on other grounds, the Court
need not decide whether that circumstance would also weigh
against relief.
                               - 15 -

knowledge at the time she signed the returns that the tax

liabilities would not be paid.   Therefore, the Court finds for

respondent on this element and need not discuss the third

element.   Accordingly, the IRS did not abuse its discretion by

denying relief under Rev. Proc. 2003-61, sec. 4.02, with respect

to 1998, 1999, 2001, and 2002.

Rev. Proc. 2003-61, Sec. 4.03:   Other Factors

     Where the requesting spouse fails to qualify for relief

under Rev. Proc. 2003-61, sec. 4.02, the IRS may nevertheless

grant relief under Rev. Proc. 2003-61, sec. 4.03.   Rev. Proc.

2003-61, sec. 4.03, 2003-2 C.B. at 298, contains a nonexhaustive

list of factors that the IRS will consider and weigh when

determining whether to grant equitable relief under section

6015(f).   The factors and the Court’s analysis with respect to

each factor are described below.

Marital Status

     The IRS will take into consideration whether the requesting

spouse is separated or divorced from the nonelecting spouse.

Rev. Proc. 2003-61, sec. 4.03(2)(a)(i), 2003-2 C.B. at 298.

     Mr. Lepordo passed away well over a year before petitioner’s

request for relief.   Therefore, the Court concludes that this

factor weighs in favor of relief.   See Banderas v. Commissioner,

T.C. Memo. 2007-129 (finding that this factor weighed in favor of

relief under similar facts).
                               - 16 -

Economic Hardship

     The IRS will also take into consideration whether the

requesting spouse will suffer economic hardship if the relief is

not granted.   Rev. Proc. 2003-61, sec. 4.03(2)(a)(ii), 2003-2

C.B. at 298.   Generally, economic hardship exists if collection

of the tax liability will cause a taxpayer to be unable to pay

reasonable, basic living expenses.      See Butner v. Commissioner,

T.C. Memo. 2007-136.    Petitioner must prove that the expenses

qualify and that they are reasonable.     See Monsour v.

Commissioner, T.C. Memo. 2004-190.

     At trial, petitioner testified that she cannot afford to pay

the liabilities.    Petitioner’s Form 12510 shows that her monthly

expenses ($2,860) exceed her net wages ($2,344) by $516.

Petitioner’s Forms 12509 state that her current income barely

allows her to stay ahead of her bills, and because of increases

in rent and utilities, it will be “very difficult if not

impossible to meet the IRS demands.”     In a document attached to

her Form 12510, petitioner stated:      “I cannot take on this burden

myself and I am trying to figure out how I’m going to make it

with just one income”.

     To the extent that there are determination letters in the

record, the letters fail to set forth the IRS’s conclusions with

respect to this factor.    Respondent did not raise any issue as to

this factor at trial.
                               - 17 -

     The Court finds, however, that petitioner has not met her

burden.   Petitioner did not introduce into evidence her financial

records; i.e., current salary, living expenses, and amounts of

other debts, which are necessary to support her claim that she

will be unable to pay reasonable, basic living expenses if relief

is not granted.   Substantiation was particularly necessary in

view of petitioner’s assertion that her expenses exceeded her

income as well as the large amount of expenses claimed (i.e.,

$1,025 for food and $600 for utilities).    Moreover, petitioner

remains gainfully employed and has only one child whom she “helps

attend school.”   Therefore, this factor weighs against relief.

See Banderas v. Commissioner, supra (stating that lack of

economic hardship weighs against relief under Rev. Proc. 2003-

61); cf. Butner v. Commissioner, supra (stating same under Rev.

Proc. 2000-15).

Knowledge or Reason To Know:   A Properly Reported but Not Paid
Liability

     The IRS will also consider whether the requesting spouse did

not know or had no reason to know that the nonelecting spouse

would not pay the liability.   Rev. Proc. 2003-61, sec.

4.03(2)(a)(iii)(A), 2003-2 C.B. at 298.    In the case of a

properly reported but unpaid liability, the relevant knowledge is

whether the taxpayer knew or had reason to know when the return

was signed that the tax would not be paid.    See Washington v.

Commissioner, 120 T.C. at 151; see also Feldman v. Commissioner,
                               - 18 -

T.C. Memo. 2003-201, affd. 152 Fed. Appx. 622 (9th Cir. 2005).

Petitioner must establish that:    (1) At the time she signed the

return for each of the years at issue, she had no knowledge or

reason to know that the tax reported on each return would not be

paid; and (2) it was reasonable for her to believe that Mr.

Lepordo would pay the tax reported on each return.    See Ogonoski

v. Commissioner, T.C. Memo. 2004-52; Collier v. Commissioner,

T.C. Memo. 2002-144.

      The Court has found for respondent on this factor.

Therefore, this factor weighs against relief.    See Beatty v.

Commissioner, T.C. Memo. 2007-167 (applying Rev. Proc. 2003-61

and finding that knowledge or reason to know weighs against

relief); Fox v. Commissioner, T.C. Memo. 2006-22 (same); cf. Levy

v. Commissioner, T.C. Memo. 2005-92 (applying Rev. Proc. 2000-15

and stating that lack of knowledge weighs in favor of relief

while knowledge or reason to know weighs against relief).

Knowledge or Reason To Know:    Items Giving Rise to the $704.88
Portion of the Deficiency

     With respect to a liability that arises from a deficiency,

the IRS will consider whether the requesting spouse did not know

or had no reason to know of the items giving rise to the

deficiency.    Rev. Proc. 2003-61, sec 4.03(2)(a)(iii)(B), 2003-2

C.B. at 298.   If the electing spouse had actual knowledge of the

item giving rise to the deficiency, then that knowledge is a

strong factor weighing against relief.    See id.
                             - 19 -

     To the extent that the $704.88 portion of the deficiency

consists of the income Mr. Lepordo received from Signature Flight

Support, the Court finds that petitioner had actual knowledge of

the item since she knew of his employment relationship therewith,

the amount of the income, and his receipt of the income on

account of the Form W-2 enclosed with their 2000 return.   See

Cheshire v. Commissioner, 115 T.C. at 194 (finding that the

taxpayer had actual knowledge because she knew about the nature

of the income, the amount, and her spouse’s receipt thereof);

Mitchell v. Commissioner, T.C. Memo. 2000-332 (stating same).       To

the extent that the $704.88 portion of the deficiency consists of

other items, petitioner failed to show that she had no knowledge

or reason to know of the items giving rise to the deficiency.

Accordingly, this factor weighs against relief.

Nonelecting Spouse’s Legal Obligation

     The IRS will also consider whether the nonelecting spouse

has a legal obligation to pay the outstanding income tax

liability pursuant to a divorce decree or agreement.   See Rev.

Proc. 2003-61, sec. 4.03(2)(a)(iv), 2003-2 C.B. at 298.    But if

the requesting spouse knew or had reason to know at the time the

agreement was entered into that the liability would not be paid

by the nonelecting spouse, then this factor will not weigh in

favor of relief.   Id.
                               - 20 -

     There is no evidence of a divorce decree or agreement in the

record showing that the unpaid taxes were the legal obligation of

Mr. Lepordo.   Therefore, this factor is neutral.   See Magee v.

Commissioner, T.C. Memo. 2005-263 (applying Rev. Proc. 2003-61);

cf. Butner v. Commissioner, T.C. Memo. 2007-136 (applying Rev.

Proc. 2000-15).

Significant Benefit

     The IRS will consider whether the requesting spouse received

significant benefit beyond normal support as a result of the

unpaid tax liability or the item giving rise to the deficiency.

Rev. Proc. 2003-61, sec. 4.03(2)(a)(v), 2003-2 C.B. at 299.

     Respondent represents that there is no indication that

petitioner received any significant benefit beyond normal support

because of the unpaid tax liabilities or the item giving rise to

the deficiency.    In the preliminary determination denying relief

for 1998, 2001, and 2002, no issue was raised as to whether

petitioner had received any significant benefit.    The final

determination fails to make a conclusion as to this factor, and

the preliminary determination(s) for 1999 and 2000 is not in the

record.   Additionally, there is no evidence in the record

indicating that petitioner received significant benefit as a

result of the unpaid tax.

     Therefore, the Court concludes that this factor weighs in

favor of relief.   See Magee v. Commissioner, supra (stating that
                             - 21 -

lack of significant benefit weighed in favor of relief under Rev.

Proc. 2003-61); cf. Butner v. Commissioner, supra (stating that

lack of significant benefit weighed in favor of relief under

former section 6013(e) notwithstanding that Rev. Proc. 2000-15

stated that it was neutral); Ferrarese v. Commissioner, T.C.

Memo. 2002-249.

Compliance With Federal Tax Laws

     The IRS will take into consideration whether the requesting

spouse has made a good faith effort to comply with the Federal

tax laws in the succeeding years.   See Rev. Proc. 2003-61, sec.

4.03(2)(a)(vi), 2003-2 C.B. at 299.

     Respondent agrees that petitioner has complied with the

Federal tax laws since her husband’s death.   Therefore, this

factor weighs in favor of relief.   See Fox v. Commissioner, supra

(stating that noncompliance weighs against relief under Rev.

Proc. 2003-61); see also Beatty v. Commissioner, supra (stating

that one delinquently filed return, which showed a refund due,

and the other facts and circumstances were not significant

factors weighing against relief in that case, and the

Commissioner argued that the compliance factor weighed in favor

of relief under Rev. Proc. 2003-61); cf. Butner v. Commissioner,

supra (stating that noncompliance weighs against relief under

Rev. Proc. 2000-15).
                                - 22 -

Abuse

        The IRS will also consider whether the nonelecting spouse

abused the electing spouse.     See Rev. Proc. 2003-61, sec.

4.03(2)(b)(i), 2003-2 C.B. at 299.       The presence of abuse is a

factor favoring relief, and a history of abuse may mitigate the

electing spouse’s knowledge or reason to know.       Id.

        With respect to the abuse factor, on Form 12510 petitioner

merely stated:     “If Controlling is Abuse, then yes”, but on Forms

12509, petitioner contended that her deceased husband inflicted

abuse on her and was “very controlling.”       At trial, however, she

testified that she was not physically abused.

        The preliminary determination for 1998, 2001, and 2002 only

states that “Documentation was not provided to consider an

abusive situation or duress.”     The preliminary determination(s)

for 1999 and 2000 is not in the record.       The final determination

merely states that it was sustaining the denial and granting

partial relief for 2000, but there is no explanation whatsoever

as to the IRS’s reasons for denying relief.

        Petitioner’s claim of abuse is merely conclusory:    she

points to no specific incidents or threats at or near the time

she signed the return.     See In re Hinckley, 256 Bankr. 814

(Bankr. M.D. Fla. 2000).     Additionally, petitioner’s testimony at

trial contradicts the allegations of abuse on her Forms 12509.
                              - 23 -

On the other hand, the IRS’s administrative record with respect

to the abuse factor is scant at best.

     Because of the lack of sufficient evidence of abuse in the

record, as well as the Court’s concern that Mr. Lepordo is not

available to defend himself against the abuse allegations or to

otherwise verify them, the Court finds that the abuse factor is

neutral.   See Rev. Proc. 2003-61, sec. 4.03(2)(b)(i) (stating

that the presence of abuse weighs in favor of relief while lack

of abuse does not weigh against relief); see also Magee v.

Commissioner, T.C. Memo. 2005-263 (stating that lack of abuse is

a neutral factor under Rev. Proc. 2003-61); cf. Butner v.

Commissioner, supra (stating same under Rev. Proc. 2000-15).

Additionally, the Court finds that because of the lack of

evidence of abuse in the record, this factor does not mitigate

petitioner’s knowledge or reason to know.

Mental or Physical Health

     The IRS will take into consideration whether the electing

spouse was in poor mental or physical health on the date the

electing spouse signed the return or at the time relief was

requested.   See Rev. Proc. 2003-61, sec. 4.03(2)(b)(ii), 2003-2

C.B. at 299.

     There is no evidence in the record that petitioner’s mental

or physical health was poor; therefore, this is a neutral factor.

See id.; see also Magee v. Commissioner, supra.
                                - 24 -

Conclusion:   Weight of the Factors

     Although the decision is close, the Court concludes that the

Appeals officer did not act arbitrarily, capriciously, or without

sound basis in fact, nor is there anything “fundamentally wrong”

with the IRS’s determination.    See Johnson v. J.B. Hunt Transp.,

Inc., 280 F.3d at 1131.   Consequently, the Court concludes that

respondent’s denial of relief with respect to 1998 through 2002

was not an abuse of discretion and that it would not be

inequitable to hold petitioner liable for the unpaid taxes and

the $704.88 portion of the deficiency with respect to 2000.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.
