           Case: 11-15309    Date Filed: 11/27/2012   Page: 1 of 5

                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-15309
                        Non-Argument Calendar
                      ________________________

                            Agency No. 9480-09


MELISSA CROSS,
                                                            Petitioner-Appellee,

KARL E. CROSS,

                                                          Intervenor-Appellant,

                                   versus

COMMISSIONER OF IRS,
                                                          Respondent-Appellee.

                      ________________________

                 Petition for Review of a Decision of the
                              U.S. Tax Court
                      ________________________

                            (November 27, 2012)



Before BARKETT, PRYOR and EDMONDSON, Circuit Judges.
               Case: 11-15309     Date Filed: 11/27/2012   Page: 2 of 5

PER CURIAM:



      Karl Cross appeals the tax court’s order dismissing him as an intervenor in

his ex-wife’s tax proceeding. No reversible error has been shown; we affirm in

part and dismiss in part for lack of jurisdiction.

      Karl and Melissa Cross filed a joint federal income tax return for 2004.

After the couple divorced, the Commissioner of Internal Revenue issued a notice

of deficiency for tax year 2004. Then, in the tax court, Melissa filed a petition

alleging that the 2004 joint tax return was invalid because she had not signed it

and had not authorized Karl to sign it on her behalf. As a result, she argued that

she should not be held jointly and severally liable for the tax deficiency. In the

alternative, Melissa asserted that she was eligible for relief as an “innocent

spouse” under Internal Revenue Code section 6015.

      Karl sought to intervene in Melissa’s case pursuant to section 6015(e)(4)

and Tax Court Rule 325(b). The tax court recognized Karl as an intervenor and

added him as a party.

      The Commissioner and Melissa later stipulated that the 2004 joint tax return

was not valid for Melissa. As a result, Melissa was unentitled to relief under

section 6015; and the Commissioner and Melissa filed a joint motion to dismiss

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Karl as an intervenor in the case. After oral argument, the tax court granted the

motion to dismiss, stating that -- because Melissa no longer sought section 6015

relief -- the “condition precedent for intervention by Karl Cross no longer exists.”

This appeal followed.

      We have jurisdiction to review the tax court’s order of dismissal pursuant to

26 U.S.C. § 7482, which provides that we “have exclusive jurisdiction to review

the decisions of the Tax Court . . . in the same manner and to the same extent as

decisions of the district courts in civil actions tried without a jury.” 26 U.S.C.

§ 7482(a)(1). We review the tax court’s legal conclusions de novo and its factual

findings for clear error. Creel v. Comm’r, 419 F.3d 1135, 1139 (11th Cir. 2005).

      On appeal, Karl argues that a request for relief under section 6015 is not a

condition precedent for intervention under Rule 325(b). We disagree. Section

6015(e)(4) directs the tax court to “develop rules which provide the individual

filing a joint return but not [requesting “innocent spouse” relief under subsections

(b), (c), or (f)] with adequate notice and an opportunity to become a party to a

proceeding under either such subsection.” I.R.C. § 6015(e)(4) (emphasis added).

Tax Court Rule 325(b) then permits the “other spouse” to intervene in cases filed

specifically under section 6015(e). The tax court has said -- and we agree -- that

“[r]eading section 6015(e) as a whole and in conjunction with Rule 325(b), it is

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clear that intervention by a nonelecting spouse presumes an existing proceeding

(i.e., a deficiency, stand-alone, or collection review proceeding) brought by the

electing spouse.” Maier v. Comm’r, 119 T.C. 267, 272 (2002).

          The purpose of such intervention is to allow the nonelecting spouse “an

opportunity to be heard on innocent spouse issues” and, thus, “to ensure that

innocent spouse relief is granted on the merits after taking into account all relevant

evidence.” See Corson v. Comm’r, 114 T.C. 354, 365 (2000) (emphasis added).

So, when an electing spouse withdraws his or her request for innocent spouse

relief under section 6015 -- as Melissa did here -- the proceeding in which the

“other spouse” was permitted to intervene under Rule 325(b) ceases to exist.

Thus, the tax court properly dismissed Karl as an intervenor.1

          Karl also argues that, even if he was no longer eligible to intervene under

Rule 325(b), he qualified for intervention under Federal Rule of Civil Procedure

24. Because Karl never filed a motion to intervene pursuant to Rule 24, that issue

was never adequately presented to the tax court; and we lack jurisdiction to review

it on appeal.2 See Bone v. Comm’r, 324 F.3d 1289, 1294 (11th Cir. 2003)

  1
   Karl argues that he still should have the opportunity to present evidence about the validity of the
2004 joint tax return, but this opportunity is not a right established by section 6015(e).
      2
    Karl first raised his potential eligibility for intervention under Rule 24 in his “Supplemental
Response in Opposition to Joint Motion to Dismiss.” Although Karl asserts on appeal that this
wording in the briefing process in the tax court was sufficient to assert his right to intervene, he

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(“Arguments not raised in the court below are usually not considered by this

Court.”).

       AFFIRMED IN PART, DISMISSED IN PART.




admits that he never actually filed a separate motion for intervention under Rule 24. And we do not
expect trial judges to read arguments imaginatively or to tweeze out motions never made.

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