                          T.C. Memo. 2011-88



                       UNITED STATES TAX COURT



         JOAN THOMASSEN, DECEASED, MARK D. THOMASSEN, SPECIAL
                     ADMINISTRATOR, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21803-06.               Filed April 21, 2011.


     Curtis W. Berner, for petitioner.

     Kim-Khanh Thi Nguyen, for respondent.



                          MEMORANDUM OPINION


     GALE, Judge:    This case arises from a petition for review

pursuant to section 6015(e)1 of respondent’s denial of relief

under section 6015 with respect to original petitioner Joan


     1
      Unless otherwise noted, all section references are to the
Internal Revenue Code of 1986 as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. All dollar
amounts have been rounded to the nearest dollar.
                               - 2 -

Thomassen’s income tax liabilities for 1964 through 1971.2

Respondent determined that petitioner is not entitled to relief

under section 6015(b), (c), or (f) for any of those years.   We

conclude that petitioner is entitled to relief under subsection

(f) from the 1964, 1965, 1967, 1968, 1969, and 1970 liabilities,

but that she is not entitled to any relief under section 6015

from the 1966 and 1971 liabilities, as she did not file joint

returns for those years.

                            Background

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

incorporate by this reference the stipulations of fact and

attached exhibits.   At the time the petition was filed,

petitioner resided in California.   The special administrator

currently resides in California.

I.   Petitioner’s Education and Family Background

     A.    Petitioner’s Education

     Petitioner received a college degree with a major in music

in 1950.   Petitioner took no courses in business, tax, or

accounting.




     2
      The petition in this case was filed by Joan Thomassen.
Mrs. Thomassen died on Apr. 23, 2010, after trial and the filing
of briefs. Mark D. Thomassen was thereafter appointed special
administrator of the Estate of Joan Thomassen and substituted as
petitioner for the purpose of maintaining this proceeding. For
convenience, we shall hereinafter refer to Mrs. Thomassen as
petitioner.
                               - 3 -

     B.   Petitioner’s Marriage and Children

     Petitioner and her husband, Elmer H. Thomassen (Dr.

Thomassen),3 who was deceased when petitioner sought section 6015

relief, were married in 1953 and remained so until Dr.

Thomassen’s death in April 2004.   Dr. Thomassen was a devout

Catholic who attended Mass almost daily.   Petitioner converted to

Catholicism in connection with her marriage.     The Thomassens had

10 children, born between 1954 and 1975, 8 of whom they were

raising during the years when the deficiencies at issue arose.

     C.   The Thomassens’ Employment and Finances

     During the years at issue Dr. Thomassen maintained a

successful practice as an orthopedic surgeon.4    Petitioner was a

homemaker and part-time professional cellist.    Petitioner was not

involved in any way with her husband’s medical practice.

Starting in 1964 and through the years in issue, petitioner

played the cello professionally, and she was compensated for her

performances.   In 1970 and 1971 petitioner played in a summer

festival 7 nights a week for 7 weeks.   Starting in 1971,

petitioner played with the Disneyland Orchestra.




     3
      We will hereinafter refer to petitioner and her husband
together as the Thomassens.
     4
      In one of her submissions petitioner characterized Dr.
Thomassen as making “good money” from his practice during the
years in issue.
                                - 4 -

     Dr. Thomassen controlled the family’s finances.    He made the

decisions with respect to major purchases and investments.      His

office nurse paid the Thomassens’ principal household bills.      Dr.

Thomassen gave petitioner money to pay miscellaneous household

and family expenses, but the amounts he gave her were often

insufficient.    Rather than ask Dr. Thomassen for additional funds

and risk his ire (see discussion under “Abuse” below), petitioner

would borrow money from her mother or sell personal items to meet

the shortfall.    She also used her earnings from playing the cello

for this purpose.    The Thomassens had separate bank accounts.

Petitioner deposited her cello earnings into her account.

Petitioner had no credit cards.    Dr. Thomassen never told

petitioner his bank account balance or net worth.

     D.     The Thomassens’ Standard of Living and Expenditures

     In 1957 the Thomassens purchased a single-family residence

in Newport Beach, California (Newport Beach property), as joint

tenants.    They financed the acquisition with a mortgage loan,

payments on which were made from income from Dr. Thomassen’s

medical practice during the years in issue.    The Thomassens

resided at the Newport Beach property continuously until Dr.

Thomassen’s death, and petitioner resided there afterwards.       The

original structure had three bedrooms and two bathrooms.      Around

1960 the Thomassens added two rooms above the garage and a third

bathroom.
                               - 5 -

     During the years in issue the Thomassens paid for their

children to attend private Catholic schools and to participate in

various extracurricular activities.    Their house was furnished

frugally, a sofa being the only item of furniture purchased new

during the years at issue.   Around 1965 the Thomassens purchased

a new motorhome for vacationing.   The Thomassens traveled

domestically, and every 3 years they traveled overseas to attend

medical conferences.   Sometime during their marriage but before

1972, Dr. Thomassen acquired four other parcels of real estate as

investments, using earnings from his medical practice.    These

parcels were titled jointly in Dr. Thomassen’s and petitioner’s

names.

     The Thomassens’ expenditures were paid primarily with income

from Dr. Thomassen’s practice although as noted some household

expenses were paid with petitioner’s earnings as a cellist.

     E.   Abuse

     During the years at issue petitioner was psychologically

abused by Dr. Thomassen.   Dr. Thomassen was subject to fits of

rage and extremely controlling behavior,5 which worsened as he

came under increasing scrutiny from the Internal Revenue Service




     5
      Dr. Thomassen would require his eldest son, while in
private Catholic school, to arise every morning at 4 a.m. to
perform various tasks, such as car repair. When Dr. Thomassen
found any white bread or any product containing sugar in the
household, he would discard it.
                               - 6 -

(IRS).6   Dr. Thomassen experienced almost weekly outbursts.    At

some point he was diagnosed with bipolar disorder.    Petitioner

tried to please her husband to avoid triggering his outbursts.

     As a consequence of his difficulties with the IRS, Dr.

Thomassen was often sought out by process servers.    He instructed

the children not to answer the telephone or the door, so as to

avoid process servers.   One teenaged daughter, who was eventually

diagnosed with bipolar disorder, inadvertently answered the door,

contrary to Dr. Thomassen’s instructions, resulting in the

successful service of papers on her father.   Faced with the

prospect of his ire, she attempted suicide.

     The Thomassens’ eldest daughter, Marilyn Rose Thomassen

(Marilyn), once invited college friends to come home with her for

the weekend.   The friends were so shocked after witnessing Dr.

Thomassen’s behavior for a few days that they urged Marilyn to

find another place for petitioner and the other children to live.

One friend observed that since petitioner had been subjected to

Dr. Thomassen’s behavior for her entire adult life, she probably

did not realize anything was wrong.

     Petitioner at one point sought counseling from her priest

concerning Dr. Thomassen’s behavior towards her.   The priest

counseled petitioner that she needed to be patient.


     6
      Respondent began examining the Thomassens’ income tax
returns in 1959, and all of their returns for 1964 through 1971
were examined.
                               - 7 -

II.   Reporting, Assessment, and Collection Activities

      A.   Income Tax Returns Filed

      The Thomassens filed delinquent joint Federal income tax

returns for taxable years 1964, 1965, 1967, 1968, 1969, and 1970,

all but one of which reported adjusted gross income of zero and

no income tax liability for the year.7   Dr. Thomassen either

prepared the returns himself or engaged someone to do so, and he

presented them to petitioner for her signature.   Petitioner did

not review the returns before signing them.

      B.   Notices of Deficiency

      Respondent issued notices of deficiency to the Thomassens

with respect to all of the years at issue, 1964 through 1971.

Only the notices covering 1969, 1970, and 1971 are in the




      7
      None of the returns are in the record. The parties have
stipulated the filing of and filing dates for joint returns for
all taxable years in issue except 1966 and 1971. For all such
years, the record also contains certified copies of Forms 4340,
Certificate of Assessments, Payments, and Other Specified
Matters. After reserving objections in the stipulations to the
admissibility of the Forms 4340, petitioner withdrew the
objections at trial.
     Account transcripts covering all years in issue except
petitioner’s 1966 taxable year are in the administrative record
compiled in connection with petitioner’s request for sec. 6015
relief. The reported adjusted gross income for each year is
recorded in the account transcript for that year and it
corresponds to each Form 4340 in the record.
                                 - 8 -

record.8    The notices for 1969 and 1970 were issued to the

Thomassens jointly.    Separate notices were issued to petitioner

and to Dr. Thomassen for 1971.

     The notice of deficiency for 1969 determined a deficiency

based on the disallowance of business expenses claimed on the

Schedule C, Profit (or Loss) From Business or Profession, for

1969.    The notice stated that the Thomassens reported gross

receipts for 1969 as follows:

            Wages, salaries, tips                $707
            Ordinary dividends                     73
            Capital gain dividends                206
            Interest income                       367
            Schedule C business income        172,417
            Rental income                       1,493
            Farm Schedule F income              7,314
              Total gross receipts            182,577

The notice also stated that the Thomassens claimed $222,661 in

business expense deductions.     The notice determined that, because

there was no substantiation of the reported expenses, the

Thomassens should be allowed a deduction for those expenses equal

to 42 percent of total gross receipts, or $76,682.




     8
      The   1969 notice is complete, but the record contains only
the first   page of each of the 1970 and 1971 notices. Petitioner
initially   reserved an objection to the admissability of the 1969
notice of   deficiency but withdrew the objection at trial.
                                - 9 -

     The notice of deficiency issued jointly to the Thomassens

for 1970 and the notices issued to each separately for 1971 are

all dated January 25, 1974.    The 1971 notices determined

deficiencies and additions to tax in amounts that were different

for petitioner and Dr. Thomassen for that year.

     C.    Deficiency Proceedings

     The Thomassens filed three petitions in this Court with

respect to the notices of deficiency for taxable years 1964

through 1971.   A petition at docket No. 5098-72 covered taxable

years 1964 through 1968, a petition at docket No. 5337-73 covered

taxable year 1969, and a petition at docket No. 2949-74 covered

taxable years 1970 and 1971.    The three docketed cases were

ultimately consolidated for purposes of trial.      On May 12, 1975,

petitioner executed a power of attorney authorizing her husband

to represent her before the Court with respect to all years at

issue.9   During the proceedings Dr. Thomassen repeatedly advanced

frivolous tax-protester arguments.      The central dispute in the

litigation concerned Dr. Thomassen’s refusal to provide

substantiation of claimed expenses for his medical practice and

other business activities because he contended that providing



     9
      Petitioner attended the trial but allowed Dr. Thomassen to
represent her pursuant to the power of attorney. Respondent does
not contend, nor do we find, that petitioner “participated
meaningfully” in these prior deficiency proceedings within the
meaning of sec. 6015(g)(2) so as to preclude her claim for sec.
6015 relief in this case.
                                 - 10 -

financial records and information to the Government violated his

constitutional rights and religious beliefs.     On June 2, 1975, in

the face of Dr. Thomassen’s refusal to put on any evidence, the

Court dismissed the cases for lack of prosecution and entered

separate decisions in each of the three docketed cases sustaining

the determined deficiencies and additions to tax in their

entirety.10     The decision in the case covering the years 1964

through 1968 held the Thomassens jointly liable for deficiencies

and additions to tax for 1964, 1965, 1967, and 1968 and

individually liable for deficiencies and additions to tax (in

differing amounts) for 1966.11     The decision in the case covering


     10
      Copies of the three decisions are in the record.
Petitioner reserved objections to the admissability of these
documents in the parties’ stipulations but withdrew the
objections at trial.
     11
          The decision in the case at docket No. 5098-72 states in
part:

          ORDERED, that Respondent’s motion is granted and
     this case is dismissed for lack of prosecution. It is
     further

          ORDERED and DECIDED: That there are deficiencies
     in income tax, together with additions to the tax due
     from the Petitioners, Elmer H. Thomassen and Joan C.
     Thomassen, for the taxable years ended December 31,
     1964, 1965, 1967, and 1968, as follows:

                          ADDITIONS TO THE TAX
                             I.R.C. of 1954

             Year           Income Tax      Section 6653(a)
             1964           $19,553.39           $977.67
             1965           $29,614.49         $1,480.72
                                                      (continued...)
                                  - 11 -

1969 held the Thomassens jointly liable for a deficiency and

additions to tax for that year.12      The decision in the case

     11
          (...continued)
              1967           $28,342.24            $1,417.11
              1968           $37,089.00            $1,854.00

          Further, that there is a deficiency in income tax,
     together with additions to the tax due from the petitioner
     Joan C. Thomassen for the taxable year ended December 31,
     1966, as follows:

                           ADDITIONS TO THE TAX
                              I.R.C. OF 1954

             Year   Income Tax   Section 6651(a)    Section 6653(a)
             1966   $12,453.10     $3,113.27          $622.65

          Further, that there are deficiencies in income tax
     together with additions to the tax due from the Petitioner
     Elmer H. Thomassen for the taxable year ended December 31,
     1966, as follows:

                           ADDITIONS TO THE TAX
                              I.R.C. OF 1954

             Year   Income Tax   Section 6651(a)    Section 6653(a)
             1966   $12,859.00      $3,214.75          $642.95



     12
          The decision in the case at docket No. 5337-73 states in
part:

          ORDERED, that Respondent’s motion is granted and
     this case is dismissed for lack of prosecution. It is
     further

          ORDERED and DECIDED: That there are deficiencies
     in income tax, together with additions to the tax, due
     from Petitioners Elmer H. Thomassen and Joan C.
     Thomassen for the taxable year ended December 31, 1969
     as follows:

                                                          (continued...)
                                 - 12 -

covering 1970 and 1971 held the Thomassens jointly liable for a

deficiency and addition to tax for 1970 and individually liable

for deficiencies and additions to tax (in differing amounts for

each) for 1971.13

     12
          (...continued)
                  ADDITIONS TO THE TAX - I.R.C. of 1954

     Year         Income Tax          Section 6653(a)
     1969         $49,484.00            $2,474.00

     13
          The decision in the case at docket No. 2949-74 states in
part:

          ORDERED, that Respondent’s motion is granted and this
     case is dismissed for lack of prosecution. It is further

          ORDERED and DECIDED: That there are deficiencies in
     income tax, together with additions to the tax due from the
     Petitioners Elmer H. Thomassen and Joan M. Thomassen for the
     taxable year ended December 31, 1970 as follows:

                  ADDITIONS TO THE TAX I.R.C. OF 1954

     Year         Income Tax          Section 6653(a)
     1970          $56.970.00           $2,849.49

          Further, that there is a deficiency in income tax,
     together with additions to the tax, due from the Petitioner
     Joan M. Thomassen, for the taxable year ended December 31,
     1971, as follows:

                  ADDITIONS TO THE TAX I.R.C. OF 1954

                                 Section    Section     Section
     Year         Income Tax     6651(a)    6653(a)      6654
     1971         $19,255.80    $4,813.95   $962.79     $616.19

          Further, that there is a deficiency in income tax,
     together with additions to the tax, due from Petitioner
     Elmer H. Thomassen for the taxable year ended December 31,
     1971 as follows:
                                                   (continued...)
                                    - 13 -

     On October 13, 1975, respondent assessed the deficiencies

and additions to tax sustained by the Tax Court for 1964 through

1971.        The Court’s decisions were affirmed by the Court of

Appeals for the Ninth Circuit on March 12, 1979.         Petitioner and

Dr. Thomassen filed separate petitions for certiorari with the

U.S. Supreme Court for review of the decision of the Court of

Appeals (covering their taxable years 1964 through 1971).

Respondent filed a memorandum in opposition to the petitions for

certiorari, and in a footnote respondent’s counsel wrote: “Joan

Thomassen is a party because she filed joint income tax returns

with her husband for all years except 1966.”

     D.         Collection Proceedings

        In 1979 the United States filed suit in U.S. District Court

against the Thomassens in order to reduce to judgment the unpaid

assessments for the years at issue and to foreclose tax liens on

the Newport Beach property and the four other parcels of real

estate they owned.        The District Court held the Thomassens

jointly and severally liable for a portion of the tax liability




        13
             (...continued)
                      ADDITIONS TO THE TAX I.R.C. OF 1954

                                    Section    Section      Section
        Year         Income Tax     6651(a)    6653(a)       6654
        1971         $19.841.00    $4,960.00   $992.05      $634.91
                              - 14 -

and each individually liable for two remaining portions.14       The

District Court also set aside as null and void various

conveyances during 1972 and 1973 of the Newport Beach property

and the Thomassens’ four other parcels of real estate, thereby

subjecting them to respondent’s lien.   The District Court further

directed the sale of the Newport Beach property and the four

other parcels of real estate.15

     The United States obtained renewals of the judgment against

the Thomassens on July 12, 1989, and August 16, 1999.     The

District Court’s 1999 renewal order was affirmed by the Court of

Appeals for the Ninth Circuit on February 22, 2001.     United

States v. Thomassen, 4 Fed. Appx. 481 (9th Cir. 2001).     On April

26, 2006, the District Court issued an order directing

petitioner’s eviction from, and the public sale of, the Newport

Beach property.

III. Request for Section 6015 Relief

     A.   Petitioner’s Submissions

     On May 10, 2006, in response to the public sale and eviction

order, petitioner filed Form 8857, Request for Innocent Spouse


     14
      The District Court also set aside as null and void various
conveyances by the Thomassens of the Newport Beach property and
their four other parcels of real estate, thereby subjecting the
properties to the Government’s tax liens and foreclosure.

     15
      For reasons not disclosed in the record, the Newport Beach
property was not sold at that time.
                               - 15 -

Relief (relief request), requesting relief from her income tax

liabilities for 1964 through 1974.16    Attached to the relief

request were documents entitled “Supplement to Form 8857” (first

supplement) and “Facts and Circumstances Supporting Innocent

Spouse Request” (second supplement).

     Petitioner represented on the first supplement that her

husband controlled the family’s finances and that her family

lived frugally during the years at issue.       On the second

supplement petitioner elected separate liability treatment under

section 6015(c).

     Petitioner also submitted to respondent a Form 12510,

Questionnaire for Requesting Spouse (questionnaire), dated May

26, 2006.    In response to the question “Were you abused by your

(ex)spouse during [the] year(s) in question?” petitioner

submitted a sworn delaration of Marilyn recounting Dr.

Thomassen’s bipolar disorder diagnosis and the reaction of her

college friends to Dr. Thomassen’s behavior (described more fully

in our previous findings).

     B.     Compliance Division Determination

     On September 25, 2006, respondent’s Compliance Division

issued a notice of final determination denying relief for


     16
      Although the relief request seeks relief for taxable years
1964 through 1974, there is no mention of 1972, 1973, or 1974 in
petitioner’s supporting materials, respondent’s determination, or
the petition. We accordingly lack jurisdiction over any claim
for relief covering the 1972 through 1974 taxable years.
                               - 16 -

petitioner’s taxable years 1964, 1965, 1967, 1968, 1969, and 1970

under section 6015(b), (c), or (f).     With respect to taxable

years 1966 and 1971, respondent’s Appeals Office issued a

determination letter one day later, on September 26, 2006, which

treated petitioner’s request for relief for 1966 and 1971 as a

request for relief under section 66(c) and denied it.     For the

foregoing years other than 1966 and 1971, the Compliance Division

denied relief under subsections (b) and (c) on the ground that

petitioner “had actual knowledge and reason to know about the

income that caused the additional tax”.    Relief was denied under

subsection (f) on the grounds that petitioner failed to establish

either (1) that “it would be unfair to hold * * * [petitioner]

responsible for the amount due since * * * [petitioner] received

benefits from the unreported income”, or (2) that petitioner “had

reason to believe * * * [petitioner’s] spouse would pay the tax

when the return was filed.”    According to the workpapers of the

Compliance Division analyst who reviewed petitioner’s request,

located in petitioner’s administrative file, the analyst found

“no marital abuse”.

     C.   Tax Court Petition

     On October 26, 2006, petitioner timely filed a petition for

determination of relief from joint and several liability on a
                               - 17 -

joint return, challenging respondent’s denial of relief for 1964

through 1971.17

     D.   Appeals Office Review

     After the petition was filed, petitioner’s request for

section 6015 relief was transferred from the Compliance Division

to respondent’s Appeals Office for consideration.   The Appeals

Office requested and received additional information from

petitioner but likewise concluded that she was not entitled to

relief under section 6015(b), (c), or (f).

                               OPINION

I.   Overview of Section 6015 Relief From Joint and Several
     Liability

     Section 6013(d)(3) provides that taxpayers filing joint

Federal income tax returns are jointly and severally liable for

the taxes due.    However, section 6015 provides relief from joint

and several liability under certain conditions.   Generally

speaking, a joint filer may obtain relief where he or she did not

have actual or constructive knowledge of the understatement of

tax on a return, sec. 6015(b); or, if no longer married to the

other joint filer, he or she may limit his or her liability to

his or her allocable portion of any deficiency, sec. 6015(c); or


     17
      Although petitioner’s claims for relief for taxable years
1966 and 1971 were initially dismissed from the case for lack of
jurisdiction, petitioner’s motion to amend the petition to
restore 1966 and 1971 was subsequently granted after additional
evidence bearing on petitioner’s filing status for those years
was brought forth.
                              - 18 -

if ineligible for relief under subsection (b) or (c), he or she

may obtain relief where, in view of all the facts and

circumstances, it would be inequitable to hold the joint filer

liable, sec. 6015(f).

      A taxpayer may seek relief from joint and several liability

by raising the matter as an affirmative defense in a petition for

redetermination invoking this Court’s deficiency jurisdiction

under section 6213(a) or, as in this case, by filing a so-called

stand-alone petition challenging the Commissioner’s final

determination denying the taxpayer’s claim for such relief.     See

sec. 6015(e)(1); Fernandez v. Commissioner, 114 T.C. 324, 329

(2000); Butler v. Commissioner, 114 T.C. 276, 287-288 (2000).18

      Except as otherwise provided in section 6015, the taxpayer

seeking relief 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).

II.   Scope and Standard of Review

      The parties agree that the proper standard and scope of

review in determining whether relief is warranted under section

6015(b) or (c) is de novo.   See Porter v. Commissioner, 132 T.C.



      18
      A taxpayer may also seek such relief in a petition for
review of a collection action, see secs. 6320(c),
6330(c)(2)(A)(i), or as an affirmative defense in a matter
properly before this Court under sec. 6404 (relating to the
Commissioner’s determination not to abate interest), Estate of
Wenner v. Commissioner, 116 T.C. 284, 288 (2001).
                              - 19 -

203, 210 (2009); Alt v. Commissioner, supra at 313-315.       Although

the parties disagree regarding the standard and scope of review

that we should apply in determining whether equitable relief is

warranted under section 6015(f), this Court has concluded that a

de novo standard and scope of review is likewise required when

reviewing whether equitable relief should be granted pursuant to

section 6015(f).   Porter v. Commissioner, supra; Porter v.

Commissioner, 130 T.C. 115 (2008).     We shall accordingly consider

both the administrative record and evidence adduced at trial in

determining whether petitioner is entitled to any relief under

section 6015 and make an independent, de novo determination in

that regard.19

III. Whether Petitioner Filed Joint Returns for 1966 and 1971

     To be eligible for relief under section 6015(b), (c), or

(f), the requesting spouse must have filed a joint Federal income

tax return for the year at issue.    See sec. 6015(b)(1)(A)

(allowing relief if, inter alia, “a joint return has been made

for a taxable year”), (c)(1) (limiting joint liability where,



     19
      On brief, both respondent and petitioner frame their
arguments as if the determination under review is that of the
Appeals Office. However, the “final” determination denying sec.
6015 relief was issued on Sept. 25, 2006, by respondent’s
Compliance Division. That determination is the basis of the
Court’s jurisdiction. See sec. 6015(e)(1)(A)(i)(I). However,
given that the standard and scope of review is de novo, any
differences in the reasoning or evidence relied on in the
positions taken by respondent’s Compliance and Appeals personnel
need not concern us.
                               - 20 -

inter alia, “an individual who has made a joint return for any

taxable year elects the application of * * * [the] subsection”);

see also Christensen v. Commissioner, 523 F.3d 957, 963 (9th Cir.

2008) (equitable relief under section 6015(f) is available only

if a joint return is filed), affg. T.C. Memo. 2005-299); Alt v.

Commissioner, supra at 312 (same);      Raymond v. Commissioner, 119

T.C. 191 (2002) (same).

     Petitioner contends that she filed joint returns for 1966

and 1971 with Dr. Thomassen.   No return for either year, filed by

petitioner or Dr. Thomassen, is in evidence.     Petitioner contends

that we should find that she filed a joint return for 1966

because it is undisputed that she filed joint returns in the

years before and after 1966, creating an inference that the same

thing was done in that year.   With respect to 1971, petitioner

points to the statement made by respondent’s counsel, in a

footnote to a memorandum filed in opposition to the Thomassens’

petitions for certiorari in the deficiency cases covering the

years at issue, to the effect that petitioner filed joint returns

for all of the years at issue except 1966.     Petitioner would have

us construe the statement as an admission by respondent that

petitioner filed a joint return for 1971.     Respondent contends

that the preponderance of the evidence demonstrates that

petitioner did not file a joint return for 1966 or 1971, pointing

to (1) respondent’s 1966 account transcript for Dr. Thomassen
                              - 21 -

listing his filing status as “single”; (2) respondent’s 1971

account transcripts for Dr. Thomassen and petitioner listing each

of their filing statuses as “single”; (3) notices of deficiency

for 1971 that were issued separately and for different amounts to

petitioner and Dr. Thomassen; and (4) this Court’s June 2, 1975,

decisions in the three docketed cases covering the years at

issue, which separately stated the amounts due from petitioner

and Dr. Thomassen for 1966 and 1971, while stating single amounts

due from both of them for all remaining years at issue.

     We start with the proposition that this Court’s now-final

decisions covering petitioner’s income tax liabilities for 1966

and 1971 necessarily established her filing status for those

years.   See Millsap v. Commissioner, 91 T.C. 926, 936 (1988)

(“filing status * * * concerns a part of a deficiency that is no

less significant than the amount of the income and deductions

determined in arriving at an income tax deficiency”).   Under the

doctrine of res judicata, petitioner is precluded from contending

in this proceeding that her filing status is other than that

established in this Court’s decisions redetermining her income

tax deficiencies for 1966 and 1971.

     While the decisions covering 1966 and 1971 do not explicitly

address petitioner’s filing status, the terms of the decisions

indicate that the Court determined petitioner’s filing status for

those years was not joint.   The decision in the case covering
                              - 22 -

years 1964 through 1968 treats 1966 differently from all the

other years at issue (and it is undisputed that joint returns

were filed in these other years).   Whereas the decision treats

the deficiencies and additions to tax for the years other than

1966 as a group and characterizes them as “due from the

Petitioners, Elmer H. Thomassen and Joan C. Thomassen”, the

decision uses separate paragraphs for the 1966 deficiencies and

additions to tax, characterizing one 1966 deficiency and addition

to tax as “due from the Petitioner Joan C. Thomassen” and a

separate 1966 deficiency and addition to tax (in amounts

different from those stated in relation to Joan C. Thomassen) as

“due from the Petitioner Elmer H. Thomassen”.   The juxtaposition

of the treatment of the 1966 liabilities with the treatment of

the liabilities for the other years in the same decision leads to

the inescapable conclusion that this Court decided that the

liabilities other than 1966 were joint and several and the 1966

liabilities were not.   It follows that the Court likewise decided

that petitioner’s filing status for the years at issue other than

1966 was joint, and that her filing status for 1966 was not

joint.20




     20
      The transcript of account for Dr. Thomassen’s 1966 taxable
year, contained in the administrative record and relied on by the
Appeals Office, corroborates this reading of the Tax Court’s
decision. The transcript is for Dr. Thomassen alone, and records
his filing status as “single”.
                                - 23 -

     The same holds for 1971.    The decision in the case covering

1971, entered simultaneously with the one covering 1966,

addresses the Thomassens’ 1970 and 1971 taxable years.      Whereas

the decision characterizes the 1970 deficiency and additions to

tax as “due from the Petitioners Elmer H. Thomassen and Joan M.

Thomassen”, it then uses separate paragraphs to describe two

different sets of deficiencies and additions to tax for 1971, one

“due from the Petitioner Joan M. Thomassen” and the other “due

from the Petitioner Elmer H. Thomassen”.      As with 1966, the

conclusion is inescapable that the Court decided petitioner’s

filing status for 1970 was joint and for 1971 was not joint.21

     Given the foregoing decisions of this Court, petitioner’s

contention that she filed a joint return in 1966 because that was

her pattern cannot stand.   Similarly, the notion that respondent

conceded petitioner’s 1971 filing status as joint by virtue of

his statement to that effect in a footnote in a memorandum

opposing certiorari must also fail.      At most, the statement

regarding filing status was an oversight and was in any event



     21
      Several items of evidence corroborate this reading of the
Tax Court’s decision. Notices of deficiency for 1971 issued
separately to petitioner and Dr. Thomassen determined different
deficiencies and additions to tax for each, whereas a notice of
deficiency for 1970, mailed on the same day, was issued to the
Thomassens jointly. The transcripts of account for petitioner’s
and Dr. Thomassen’s 1971 taxable year, contained in the
administrative record and relied on by the Appeals Office, are
separate documents that record each individual’s filing status as
“single”.
                               - 24 -

immaterial to the arguments advanced in the memorandum; namely,

that the dismissal of the Thomassens’ deficiency cases for lack

of prosecution was appropriate in view of their repeated failures

to offer any evidence or nonfrivolous arguments in the Tax Court

proceedings concerning the merits of the deficiency

determinations.    We therefore conclude that petitioner did not

file a joint return in 1966 or 1971 and for that reason hold that

she is ineligible for relief under section 6015(b), (c) or (f)

for those years.

IV.   Section 6015 Relief From Liabilities for 1964, 1965 and
      1967-70

      We now address petitioner’s entitlement to section 6015

relief for the remaining years at issue.

      A.   Section 6015(b) Relief

      Petitioner first seeks relief under section 6015(b).    To

qualify for relief from joint and several liability under section

6015(b)(1), a taxpayer must establish that:

           (A) a joint return has been made for a taxable
      year;

           (B) on such return there is an understatement of
      tax attributable to erroneous items of 1 individual
      filing the joint return;

           (C) the other individual filing the joint return
      establishes that in signing the return he or she did not
      know, and had no reason to know, that there was
      such understatement;
                              - 25 -

          (D) taking into account all the facts and
     circumstances, it is inequitable to hold the other
     individual liable for the deficiency in tax for such
     taxable year attributable to such understatement; and

          (E) the other individual elects (in such form as
     the Secretary may prescribe) the benefits of this
     subsection not later than the date which is 2 years
     after the date the Secretary has begun collection
     activities with respect to the individual making the
     election,

     The foregoing requirements of section 6015(b)(1) are stated

in the conjunctive.   Accordingly, a failure to meet any one of

them prevents a requesting spouse from qualifying for section

6015(b) relief.   See Alt v. Commissioner, 119 T.C. at 313.

Respondent contends that petitioner has failed to satisfy the

requirements of subparagraphs (B), (C), (D), and (E).22




     22
      Respondent contends on brief that petitioner’s request for
relief was untimely under sec. 6015(b)(1)(E) even though
respondent expressly conceded its timeliness in his pretrial
memorandum, explaining that the Aug. 16, 1999, renewal of the
1979 judgment against petitioner had not satisfied the
notification requirement of the Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.
3501(b), 112 Stat. 770. See McGee v. Commissioner, 123 T.C. 314
(2004). Allowing respondent to pursue this issue on brief after
having conceded it before trial would be highly prejudicial to
petitioner. In any event, respondent had it right the first
time. There is no evidence that respondent notified petitioner
of her right to sec. 6015 relief in connection with the Aug. 16,
1999, judgment renewal. Consequently, respondent’s contention on
brief that petitioner’s request for relief under sec. 6015(b) was
untimely because not brought within 2 years after Aug. 16, 1999,
is meritless. See id. Insofar as the record discloses, the next
collection action against petitioner was the Apr. 26, 2006, order
directing her eviction from and the sale of the Newport Beach
property. Her May 10, 2006, relief request was therefore timely
under sec. 6015(b)(1)(E).
                                 - 26 -

          We consider whether petitioner knew or had reason to know

of the understatements within the meaning of subparagraph (C).23

Under section 6015(b)(1)(C), the requesting spouse must establish

that in signing the return, he or she did not know or have any

reason to know of the understatement.     A requesting spouse has

knowledge or reason to know of an understatement if he or she

actually knew of the understatement, or if a reasonably prudent

taxpayer in his or her position at the time the return was signed

could be expected to know that the return contained the

understatement.     Price v. Commissioner, 887 F.2d 959, 963-965

(9th Cir. 1989); Mora v. Commissioner, 117 T.C. 279, 287 (2001);

see also sec. 1.6015-2(c), Income Tax Regs.     Factors to consider

in analyzing whether the requesting spouse had “reason to know”

of the understatement include:     (1) The spouse’s level of

education; (2) the spouse’s involvement in the family’s business

and financial affairs; (3) the presence of expenditures that

appear lavish or unusual when compared to the family’s past

levels of income, standard of living, and spending patterns; and

(4) the nonrequesting spouse’s evasiveness and deceit concerning

the couple’s finances.     Price v. Commissioner, supra at 965; Mora


     23
      This “knowledge” requirement in sec. 6015(b)(1)(C) is
virtually identical to the requirement of former sec.
6013(e)(1)(C); therefore, cases interpreting former sec. 6013(e)
remain instructive to our analysis. Jonson v. Commissioner, 118
T.C. 106, 115 (2002), affd. 353 F.3d 1181 (10th Cir. 2003);
Butler v. Commissioner, 114 T.C. 276, 283 (2000); see also Doyel
v. Commissioner, T.C. Memo. 2004-35.
                                - 27 -

v. Commissioner, supra at 287.     Moreover, a taxpayer has reason

to know of an understatement if she has a duty to inquire and

fails to satisfy that duty.     Price v. Commissioner, supra at 965.

A requesting spouse has a duty to inquire when she “[knows]

enough facts to put her on notice that such an understatement

exists.”    Id.   We may impute the requisite knowledge to the

requesting spouse unless she satisfies her duty of inquiry.

Porter v. Commissioner, 132 T.C. at 211-212.

     As we construe her argument, petitioner contends that she

did not know or have reason to know of the understatements on the

joint returns at issue because she did not review them before

signing and the Thomassens’ expenditures and standard of living

during the years at issue were not lavish or unusual when

compared to their past expenditures and standard of living.      We

disagree.

     While not involved with Dr. Thomassen’s practice,

petitioner knew that during the years at issue it was successful

and that their mortgage payments and family’s household expenses

were paid primarily with income from the practice.24    During the

years at issue the Thomassens maintained the Newport Beach

property, supported eight children, paid for their children to

attend private Catholic schools, purchased a new motorhome,



     24
      As noted, petitioner paid some personal and family
expenditures with income from her cello performances.
                              - 28 -

vacationed regularly, and made trips overseas.    In addition,

sometime during their marriage and before 1972 Dr. Thomassen

acquired four parcels of real estate for investment, using

earnings from his medical practice.    Notwithstanding this

substantial level of personal expenditures, petitioner signed

returns year after year reporting no tax liability.    Although

petitioner was not versed in tax or financial matters, she was

college educated.   We believe a person in her circumstances could

reasonably be expected to know that the returns contained an

understatement or that further inquiry was warranted.      See Price

v. Commissioner, supra at 965; Butler v. Commissioner, 114 T.C.

at 283.   Accordingly, we find that petitioner had reason to know

of the understatements on the returns.    Therefore, the

requirement in section 6015(b)(1)(C) is not satisfied, precluding

relief under subsection (b)(1) from her income tax liabilities

for the remaining years at issue (1964, 1965, 1967, 1968, 1969,

and 1970).25

     B.   Section 6015(c) Relief

     Petitioner also seeks relief pursuant to section 6015(c)

which, generally speaking, relieves electing joint filers of

liability for those portions of a deficiency not allocable to



     25
      Because petitioner does not satisfy subpar. (C), we need
not consider whether she satisfies the requirements of subpars.
(B) and (D) of sec. 6015(b)(1). See Alt v. Commissioner, 119
T.C. 306, 313 (2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004).
                                   - 29 -

them.        Subject to certain limitations not pertinent here, an

individual may elect relief under section 6015(c) if (1) at the

time of the election he or she is no longer married to, or is

legally separated from, the individual with whom he or she filed

the joint return to which the election relates, or has not been a

member of the same household as that person for the 12-month

period preceding the election, and (2) the election is made not

later than 2 years after the date on which collection activity

began against the individual.        Sec. 6015(c)(3)(A) and (B).   If a

spouse elects relief under section 6015(c), the spouse’s

“liability for any deficiency which is assessed with respect to

the return shall not exceed the portion of such deficiency

properly allocable to the individual under subsection (d).”          Sec.

6015(c)(1).        An electing spouse bears the burden of proving how

much of any deficiency is allocable to him or her.        Sec.

6015(c)(2); see Charlton v. Commissioner, 114 T.C. 333, 341

(2000).

        Petitioner satisfies the threshold eligibility requirements

for electing section 6015(c) relief.        Her request was timely26

and she was widowed from Dr. Thomassen when she made the election

in her relief request.        See H. Conf. Rept. 105-599, at 252 n.16

(1998), 1998-3 C.B. 747, 1006.




        26
             See supra note 22.
                              - 30 -

     However, petitioner has not met her burden of establishing

which portions of the deficiencies for the years at issue are

allocable to her.   Petitioner admitted at trial that during the

years at issue she received income from playing the cello.

However, there is no evidence of the amount of cello income

petitioner earned each year27 nor of the amount, if any, that the

Thomassens reported on their joint returns.   Moreover, there is

evidence of other income for the years in issue that is not

obviously allocable to Dr. Thomassen’s medical practice.    The

1969 notice of deficiency in evidence determined that the

Thomassens reported income in addition to the gross receipts from

Dr. Thomassen’s practice (e.g., dividends, interest, and rental

and farming income).   Petitioner has not demonstrated that none

of those items is allocable in some portion to her.   Moreover,

the financial particulars for 1969 create a reasonable inference

that the Thomassens had similar income items for the years in

issue that preceded and followed 1969.

     In sum, petitioner has not established the portions of the

deficiencies for the years in issue that are allocable to her.

While it is true that the absence of the returns and the paucity

of other evidence related to these long-ago periods impose a



     27
      The only estimate petitioner provided at trial was that
she earned approximately $18,000 from playing the cello in 1974,
a year not in issue. However, that estimate suggests that her
earnings were not de minimis for the years at issue.
                               - 31 -

daunting burden on petitioner to comply with section 6015(c)(2),

the statute is clear that the burden falls squarely on petitioner

to establish the allocation.   She has not done so, and as a

result her claim for relief under section 6015(c) must fail.

Accordingly, petitioner is not entitled to relief under section

6015(c) from the income tax liabilities for the remaining years

at issue (1964, 1965, 1967, 1968, 1969, and 1970).

     C.   Section 6015(f) Relief

          1.   In General

     Petitioner also seeks relief under section 6015(f).    Under

that section the Commissioner may relieve a taxpayer of joint and

several liability if (1) relief is not available to the

individual under section 6015(b) or (c), and (2) taking into

account all the facts and circumstances, it is inequitable to

hold the individual liable for any unpaid tax or deficiency (or

any portion of either).   Sec. 6015(f).   Pursuant to his

authority, under section 6015(f), to prescribe “procedures” for

granting equitable relief pursuant to that provision, the

Commissioner has prescribed guidelines in Rev. Proc. 2003-61,

2003-2 C.B. 296, for determining whether relief should be granted

under section 6015(f), effective for requests for relief filed on

or after November 1, 2003.   We consider those guidelines as well

as any other facts and circumstances to determine the appropriate

equitable relief.   See sec. 6015(e)(1)(A), (f).
                               - 32 -

          2.     Factors Bearing on Equitable Relief

                 a.    Threshold Conditions

     Rev. Proc. 2003-61, sec. 4.01, 2003-2 C.B. at 297-298,

lists seven threshold conditions which generally must be

satisfied for the Commissioner to grant relief if he determines

in the light of all the facts and circumstances that it would be

inequitable to hold the requesting spouse liable for the income

tax liability.   Those conditions are:   (1) The requesting spouse

filed a joint return for the taxable year for which relief is

sought; (2) relief is not available to the requesting spouse

under section 6015(b) or (c); (3) the requesting spouse applies

for relief no later than 2 years after the date of the

Commissioner’s first collection activity after July 22, 1998,

with respect to the taxpayer; (4) no assets were transferred

between the spouses as part of a fraudulent scheme by the

spouses; (5) the nonrequesting spouse (i.e., the individual with

whom the requesting spouse filed the joint return) did not

transfer “disqualified assets” (within the meaning of section

6015(c)(4)(B)) to the requesting spouse; (6) the requesting

spouse did not file or fail to file the return with fraudulent

intent; and (7) absent enumerated exceptions, the liability from

which the requesting spouse seeks relief is attributable to an

item of the nonrequesting spouse.
                                - 33 -

     The parties do not dispute that conditions (1), (4), (5),

and (6) have been satisfied with respect to petitioner’s taxable

years 1964, 1965, 1967, 1968, 1969, and 1970.       We have held

herein that relief is unavailable to petitioner under section

6015(b) or (c) for those years, satisfying condition (2).       We

reject respondent’s contention that petitioner’s request for

relief under section 6015(f) was untimely.28

     That leaves condition (7)--that the liability from which

relief is sought be attributable to items of the nonrequesting

spouse.     Respondent argues that condition (7) is not satisfied.

We have held herein that petitioner is ineligible for relief

under section 6015(c) because she could not establish which

portions of the deficiencies for the years at issue were

allocable to her.     We reached this conclusion in view of the fact

that petitioner earned income during the years at issue as a

professional cellist and that the Thomassens reported investment,

rental, and farming income in 1969 that had not been shown to be

solely allocable to Dr. Thomassen.       For these same reasons,

petitioner might not satisfy condition (7) with respect to all

liabilities at issue.

     However, one of the exceptions to condition (7) enumerated

in Rev. Proc. 2003-61, supra, is that where the requesting spouse

establishes that he or she was a victim of abuse, equitable


     28
          See supra note 22.
                               - 34 -

relief may be granted notwithstanding that the deficiency may be

attributable in part or in full to an item of the requesting

spouse.    Rev. Proc. 2003-61, sec. 4.01(7)(d), states:

      Abuse not amounting to duress. If the requesting spouse
      establishes that he or she was the victim of abuse prior to
      the time the return was signed, and that, as a result of the
      prior abuse, the requesting spouse did not challenge the
      treatment of any items on the return for fear of the
      nonrequesting spouse’s retaliation, the Service will
      consider granting equitable relief although the deficiency
      or underpayment may be attributable in part or in full to an
      item of the requesting spouse.

      The caselaw construing what constitutes abuse not amounting

to duress29 requires a case-by-case analysis of whether there was

enough abuse to make it reasonable to conclude that the

requesting spouse was impeded from acquitting his or her

obligations under the Internal Revenue Code.    See Nihiser v.

Commissioner, T.C. Memo. 2008-135 (and cases cited therein).

Abuse for this purpose may be physical or solely psychological.

Id.   There must be substantiation, or at least specificity,

regarding the claimed abuse; generalized claims of physical or

emotional abuse are insufficient.    See id.

      As our findings reflect, petitioner adduced specific

evidence concerning Dr. Thomassen’s propensity to inflict

psychological abuse.    There was credible testimony that his



      29
      If duress were shown, sec. 6015 relief would be
unavailable, as a return signed under duress is not a joint
return. See Brown v. Commissioner, 51 T.C. 116, 120-121 (1968).
                              - 35 -

tirades drove one of his children with a fragile psyche to

attempt suicide.   Another daughter’s college friends were so

appalled after witnessing a weekend’s worth of Dr. Thomassen’s

behavior that they urged petitioner to find shelter for herself

and the younger children elsewhere.    Petitioner consulted her

priest regarding her husband’s behavior, though he counseled

perseverance--perhaps mindful of Dr. Thomassen’s role as a devout

parishioner who attended daily Mass.    The evidence also

demonstrates that Dr. Thomassen’s anxiety and rage were quite

susceptible of being triggered by matters relating to disputes

with the IRS.   He conducted years-long litigation with the IRS in

which he pursued tax-protester positions to the effect that the

Government lacked authority to investigate his finances or to

impose an income tax.   We are fully persuaded that petitioner

endured circumstances which made her reluctant to challenge the

treatment of any items on the joint returns in issue for fear of

Dr. Thomassen’s psychological abuse.    Consequently, the fact that

some of the deficiencies at issue may be attributable to items of

petitioner does not cause her to fail to satisfy condition (7).

See Rev. Proc. 2003-61, sec. 4.01(7)(d).    She therefore satisfies

all seven threshold conditions in Rev. Proc. 2003-61, sec. 4.01,

for relief under section 6015(f).
                             - 36 -

               b.   Listed Factors

     For requesting spouses who have satisfied the threshold

requirements, Rev. Proc. 2003-61, sec. 4.03(2), 2003-2 C.B. at

298-299, then lists eight nonexclusive factors to consider in

determining whether it would be inequitable to hold the

requesting spouse liable for all or part of a deficiency.

     These nonexclusive factors include whether:   (1) The

requesting spouse is separated or divorced from the nonrequesting

spouse; (2) the requesting spouse will suffer economic hardship

without relief; (3) the requesting spouse did not know or have

reason to know of the item giving rise to the deficiency; (4) the

nonrequesting spouse had a legal obligation to pay the

outstanding liability pursuant to a divorce decree or agreement;

(5) the requesting spouse received a significant benefit (beyond

normal support) from the unpaid income tax liability or item

giving rise to the deficiency; (6) the requesting spouse has made

a good faith effort to comply with income tax laws in subsequent

years; (7) the requesting spouse was abused by the nonrequesting

spouse; and (8) the requesting spouse was in poor mental or

physical health when signing the return or requesting relief.

The first five of the foregoing factors are relevant to the

determination of whether withholding relief is inequitable; the

last two factors weigh in favor of relief if present, but do not

weigh against relief if not present.   Id.   The revenue procedure
                                   - 37 -

further provides that no single factor will be determinative; all

relevant factors will be considered and weighed appropriately,

including those not listed. Id.

                       i.      Marital Status

     Petitioner was widowed when she sought relief.          For purposes

of section 6015(f), petitioner’s status of being a widow is

“tantamount to her being separated or divorced.”        Rosenthal v.

Commissioner, T.C. Memo. 2004-89.       This factor favors relief.

                       ii.     Economic Hardship

     Because petitioner is now deceased, there can be no economic

hardship to her personally if equitable relief is denied.          Jonson

v. Commissioner, 118 T.C. 106, 126 (2002), affd. 353 F.3d 1181

(10th Cir. 2003).   Accordingly, this factor weighs against

relief.

                      iii.     Knowledge or Reason To Know

     We concluded herein for purposes of section 6015(b) relief

that petitioner had reason to know of the items giving rise to

the deficiencies in the joint return years at issue--a factor

that, standing alone, weighs against equitable relief under Rev.

Proc. 2003-61, supra.        However, Rev. Proc. 2003-61, sec.

4.03(2)(b)(i), provides that “A history of abuse by the

nonrequesting spouse may mitigate a requesting spouse’s knowledge

or reason to know.”    As discussed, we are persuaded that

petitioner endured years of psychological abuse from Dr.
                               - 38 -

Thomassen, at the time the returns at issue were filed and

thereafter.   There is reason to believe the abuse may have been

exacerbated in the case of dealings with the IRS.   In these

circumstances, petitioner was effectively precluded from meeting

ordinary duties of investigation and challenge concerning the

return positions taken during the years at issue.   In line with

the revenue procedure, we conclude that petitioner’s reason to

know is neutralized as a factor weighing against equitable

relief.

                     iv.   Nonrequesting Spouse’s Legal
                           Obligation

     The Thomassens remained married until Dr. Thomassen’s death.

As this factor concerns obligations arising pursuant to a divorce

decree or agreement, it is inapplicable here.    See Magee v.

Commissioner, T.C. Memo. 2005-263; Ogonoski v. Commissioner, T.C.

Memo. 2004-52.

                     v.    Significant Benefit

     Rev. Proc. 2003-61, sec. 4.03(2)(a)(v), cites section

1.6015-2(d), Income Tax Regs., as a guide for interpreting

significant benefit as a factor in determining whether it is

inequitable to hold a requesting spouse liable for a deficiency.

Section 1.6015-2(d), Income Tax Regs., provides that “A

significant benefit is any benefit in excess of normal support.”

See also Terzian v. Commissioner, 72 T.C. 1164, 1172 (1979).

Moreover, because the language of section 6015(f)(1) containing
                               - 39 -

the equity test is virtually identical to the language of former

section 6013(e)(1)(D), caselaw construing former section

6013(e)(1)(D) remains helpful in construing section 6015(f)(1).

See Mitchell v. Commissioner, 292 F.3d 800, 806 (D.C. Cir. 2002),

affg. T.C. Memo. 2000-332; Cheshire v. Commissioner, 282 F.3d

326, 338 n.29 (5th Cir. 2002), affg. 115 T.C. 183 (2000); Jonson

v. Commissioner, supra at 119; Levy v. Commissioner, T.C. Memo.

2005-92.

     Normal support is to be measured by the circumstances of the

taxpayers.    See Sanders v. United States, 509 F.2d 162, 168 (5th

Cir. 1975);    Estate of Krock v. Commissioner, 93 T.C. 672, 678-

679 (1989); Flynn v. Commissioner, 93 T.C. 355, 367 (1989); Foley

v. Commissioner, T.C. Memo. 1995-16.

     Respondent contends that petitioner received a significant

benefit from the unpaid tax for the joint return years at issue,

citing the payment of private Catholic school tuition for as many

as eight of petitioner’s children during those years, the

acquisition of a residence and four other parcels of real estate,

and the acquisition of a new motorhome.

     While the failure to pay any Federal income tax for the 6

joint return years at issue undoubtedly increased Dr. Thomassen’s
                               - 40 -

disposable income,30 the question remains whether petitioner

significantly benefited as a result.    For the reasons discussed

below, we conclude that she did not.

     First, Dr. Thomassen controlled the family’s finances and

allowed petitioner very little access to his earnings.      See Flynn

v. Commissioner, supra at 367.   Dr. Thomassen paid many household

expenses directly from his office, presumably those which

generated a monthly or other periodic bill, such as utilities,

mortgage, and private Catholic school tuition.    He gave

petitioner an allowance for other household expenses, but he was

so parsimonious that petitioner, after using her cello earnings

for that purpose, had to borrow from her mother or sell personal

items to meet such expenses.   The Thomassens’ house was furnished

frugally.   There is no evidence that petitioner received anything

lavish for her personal consumption as a result of the unpaid tax

for the joint return years at issue.    We conclude that Dr.

Thomassen’s payment of household expenses did not extend beyond

normal support and therefore was not a significant benefit to




     30
      The deficiencies for those years, which ranged from
$20,000 to $57,000, may exaggerate the Thomassens’ taxable income
for those years, in that the central dispute in each year
concerned Dr. Thomassen’s refusal, on constitutional and
religious grounds, to provide any financial information to
substantiate his Schedule C deductions. Thus the deficiencies
may reflect the taxation of gross receipts to some extent
(although the record suggests that at least for 1969 respondent
allowed certain Schedule C expenses).
                              - 41 -

petitioner within the meaning of section 1.6015-2(d), Income Tax

Regs.

     Second, some of Dr. Thomassen’s additional disposable income

arising from the unpaid tax may well have enabled him to purchase

the four parcels of real estate he acquired for investment

purposes.   Although these properties were titled in Dr.

Thomassen’s and petitioner’s names, the properties were sold in

1979 to satisfy the Thomassens’ tax liabilities for the years at

issue.   Consequently, the properties did not provide a

significant benefit to petitioner.

     Third, respondent emphasizes that petitioner significantly

benefited by virtue of the payment of private Catholic school

tuition for as many as eight children during and after the joint

return years at issue, citing Jonson v. Commissioner, 118 T.C. at

119-120, where this Court found that payment of a couple’s

children’s college expenses significantly benefited the

requesting spouse.   However, Jonson, involving college expenses,

is distinguishable from the instant case, which involves private

elementary and secondary school tuition.   While this Court has

generally held that the payment of children’s college or graduate

school expenses constitutes a significant benefit to a requesting

spouse, see Jonson v. Commissioner, supra at 126 (college

expenses for three children); Levy v. Commissioner, supra (same);

Weiss v. Commissioner, T.C. Memo. 1995-70 (college and graduate
                              - 42 -

school expenses for three children), the payment of private

elementary or secondary school expenses of the requesting

spouse’s children generally has not been held to constitute a

significant benefit, see Marzullo v. Commissioner, T.C. Memo.

1997-261 (private school tuition for four children); Friedman v.

Commissioner, T.C. Memo. 1995-576 (private secondary school and

college expenses of two children); Foley v. Commissioner, supra

(private school expenses for two children).

     Given Dr. Thomassen’s controlling behavior, his penurious

approach to household expenditures, and his devout Catholicism (a

religion to which petitioner converted in connection with her

marriage), one can easily infer that the decision to expend funds

for the Thomassen children to attend Catholic rather than public

schools reflected Dr. Thomassen’s priorities rather than

petitioner’s.   In the particular circumstances of this case, we

conclude that petitioner did not significantly benefit by virtue

of the expenditures for private Catholic school tuition for the

Thomassen children.

     That leaves the residence, the purchase of a new motorhome

and perhaps the domestic and foreign travel (although respondent

has not cited the travel as a significant benefit).   We are not

persuaded that these expenditures exceeded normal support as

measured by the circumstances of the Thomassens.   See Flynn v.

Commissioner, supra at 366-367 (vacations, installation of
                                - 43 -

backyard swimming pool, and gift of mink coat to nonrequesting

spouse did not exceed normal support as measured by taxpayers’

circumstances).   As petitioner did not significantly benefit from

the unpaid tax at issue, this factor favors relief.

                     vi.    Income Tax Compliance

     There is no evidence concerning whether petitioner complied

or made an effort to comply with income tax laws in the taxable

years following the years for which relief is sought.     We assume

that respondent would have had ready access to evidence of any

significant noncompliance by petitioner in these years, and he

has produced none.   In this circumstances, this factor is at most

neutral and does not weigh against equitable relief.

                     vii.    Abuse

     As previously discussed, we are persuaded by the evidence

that petitioner was subject to substantial psychological abuse

from Dr. Thomassen during the period in which the returns at

issue were filed and thereafter.     Because Dr. Thomassen’s

behavior worsened as his disputes with the IRS mushroomed, and

his abusive behaviour could be triggered by matters related to

his dealings with the IRS, we believe that petitioner acquiesced

in filing the joint returns as proposed by Dr. Thomassen to keep

the peace and avoid his rage.    Thus we conclude that petitioner’s

actions with respect to filing the returns at issue, including

challenging any of the positions taken thereon, were
                                - 44 -

significantly affected by her fear of retaliatory psychological

abuse.    Consequently, spousal abuse weighs very heavily as a

factor favoring equitable relief.31

                      viii.   Mental or Physical Health

     There is no evidence that petitioner suffered significant

mental or physical health problems at the time she signed the

joint returns at issue (other than the psychological abuse

discussed).    Petitioner testified that she had cancer at the time

she requested relief, and she died after the trial.       The absence

of a health problem at the time the returns were signed does not

weigh against relief.    See Rev. Proc. 2003-61, sec. 4.03(b).

Because a requesting spouse’s health at the time of the request

for relief implicates considerations similar to those that arise

in the case of the economic hardship factor, we conclude that

petitioner’s death makes her health at the time she requested

relief irrelevant.    Cf. Jonson v. Commissioner, supra at 126 (no

economic hardship where requesting spouse is deceased).      This

factor is therefore neutral.



     31
      Respondent contends that an additional factor, beyond
those enumerated in Rev. Proc. 2003-61, 2003-2 C.B. 296, also
weighs against relief; namely, petitioner has “unclean hands”
because she participated in the scheme to fraudulently convey the
Thomassens’ real property so that it would not be available to
satisfy their income tax obligations. We conclude instead that
to the extent petitioner may have executed documents to effect
the fraudulent conveyances, she did so as a result of the same
psychological abuse that resulted in her joining in the joint
returns at issue.
                              - 45 -

          3.    Conclusion

     Petitioners satisfies all the threshold eligibility

requirements for equitable relief listed in Rev. Proc. 2003-61,

supra.   Among the revenue procedure’s listed factors,

petitioner’s marital status, absence of significant benefit, and

history of abuse favor equitable relief.   In the circumstances of

this case, abuse by the nonrequesting spouse weighs very heavily

in favor of relief, since we are persuaded that the abuse

rendered petitioner essentially incapable of challenging her

spouse regarding the positions taken on the joint returns.

Weighing against relief is the absence of economic hardship.   All

remaining listed factors are neutral or inapplicable.     On

balance, pursuant to section 6015(f), taking into account all the

facts and circumstances, we conclude that it would be inequitable

to hold petitioner liable for the deficiencies for taxable years

1964, 1965, 1967, 1968, 1969, and 1970.    We therefore hold that

petitioner is entitled to relief under section 6015(f) with

respect to the deficiencies for those years.

     We have considered all of the contentions and arguments of

the parties that are not discussed herein, and we conclude that

they are without merit, irrelevant, or moot.

           To reflect the foregoing,


                                            An appropriate decision

                                       will be entered.
