                         T.C. Summary Opinion 2012-112



                         UNITED STATES TAX COURT



                 SHANNON M. GALVAN, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 6515-12S.                       Filed November 13, 2012.



      John P. March, for petitioner.

      Gary C. Barton, for respondent.



                              SUMMARY OPINION


      ARMEN, Special Trial Judge: This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect when the petition
                                          -2-

was filed.1 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.

        This case is an action for determination of relief from joint and several

liability on a joint return commenced by petitioner pursuant to section 6015(e)(1)

and Rules 320-325.

        On May 3, 2012, respondent filed a Motion To Dismiss For Lack Of

Jurisdiction (Motion To Dismiss) on the ground that the petition was not filed within

the time prescribed by section 6015(e) or section 7502. On May 15, 2012,

petitioner filed an Objection to respondent’s Motion To Dismiss (Objection). On

May 30, 2012, respondent filed a Response to petitioner’s Objection. On August 7,

2012, we issued an Order requiring the parties to supplement their filings with

additional information. We have received the requested supplements and, after

careful review of the facts and arguments presented by the parties, we shall grant

respondent’s Motion To Dismiss, as supplemented.




        1
         Unless otherwise indicated, all subsequent section references are to the
Internal Revenue Code, as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
                                          -3-

                                      Background

       The facts relevant to the disposition of respondent’s Motion To Dismiss are

as follows:

      Petitioner resided in the State of Oklahoma at the time that the petition was

filed with the Court.

      On March 1, 2007, petitioner and her then spouse, Irving J. Galvan, signed a

joint Federal income tax return for 2005 (tax return) reporting a tax liability of

$3,999 with unpaid tax due of $2,698. On March 20, 2007, respondent received the

tax return but without any remittance, and the acknowledged tax due remained

unpaid.

      On May 28, 2007, respondent corrected a math error on the tax return that

resulted in adjusted unpaid tax due of $2,787 and assessed the adjusted liability.2 In

addition, a Form 4340, Certification of Assessments, Payments, and Other Specified

Matters, indicates that a notice showing the $2,787 balance due (Notice of Balance

Due) was mailed to petitioner on May 28, 2007.




      2
         The math error related to the overall limitation on itemized deductions
under sec. 68. The difference between the total tax assessed, $4,186, and the total
tax reported on the tax return, $3,999, is $187.
                                            -4-

         On July 5, 2007, respondent received a Form 8857, Request for Innocent

Spouse Relief (first Form 8857), from petitioner.3 On the first Form 8857 petitioner

requests relief from liability with respect to tax years 2004 and 2005 and indicates

that she was not divorced, legally separated, or living apart from Mr. Galvan at that

time.4

         In Letter 3279C, Final Determination, dated March 25, 2008 (Final

Determination), and sent by certified mail to petitioner at her last known address,

respondent determined that petitioner was not entitled to relief under section 6015

for tax year 2005.5

         As relevant herein respondent denied petitioner relief under section 6015(c)

because he determined that petitioner had actual knowledge “of the income or

deductions that caused the additional tax”. In addition, respondent determined




         3
             Petitioner dated the first Form 8857 April 15, 2007.
         4
          On her first Form 8857 petitioner indicates that she helped prepare the
former couple’s 2004 and 2005 tax returns, reviewed the 2005 tax return before
signing it, and knew that there was a balance due at the time she signed the 2005 tax
return. On an attachment to her first Form 8857, petitioner states that her husband
became addicted to gambling in 2004 and that this addiction caused the couple to
file for bankruptcy in 2005. In addition, petitioner states that “[w]hen we filed our
tax return for 2005 * * * I was then aware of his [gambling] winnings at that point.”
         5
             Tax year 2004 was addressed in a separate letter and is not in dispute.
                                         -5-

that petitioner was ineligible for section 6015(c) relief because she was not

divorced, widowed, legally separated, or living apart from Mr. Galvan for the 12

months before filing her first Form 8857.6

      Also as relevant herein, respondent denied petitioner equitable relief under

section 6015(f) because, apart from determining that she had actual knowledge as

stated above, petitioner “did not show it would be unfair to hold * * * [her]

responsible” for the tax due, failed to prove that at the time she signed the return she

“had reason to believe the tax would be paid”, and failed to “prove economic

hardship.”

      Furthermore, the Final Determination advised petitioner that “[i]f you

disagree with our decision, you can file a petition with the United States Tax Court

to review our denial. You must file your petition within 90 days from the date of

this letter. If you intend to file a petition, you should write promptly.” The Final

Determination also advised as follows: “PLEASE NOTE: The law sets the time

you are allowed to file your petition; the IRS cannot change the time period.”

      Petitioner did not file a petition with this Court within the 90-day period.


      6
         It appears that the only amount that would be subject to allocation under
sec. 6015(c) is the $187 resulting from respondent’s math error correction. See
Karp v. Commissioner, T.C. Memo. 2009-40, slip op. at 4 n.3 (“An
‘understatement,’ generally equated with a ‘deficiency,’ is the taxpayer’s failure to
correctly report on a return the amount of tax due.”).
                                         -6-

      About two years later on March 16, 2010, respondent received a second

Form 8857 for tax year 2005 again requesting relief under section 6015. On the

second Form 8857, petitioner indicates that she was divorced from her husband on

January 5, 2010.7 An attachment to the second Form 8857 alleges that “[i]t would

be inequitable to hold Shannon Galvan responsible for any tax debt for the tax year

2005”.

      On September 29, 2010, respondent received a third Form 8857 from

petitioner for tax year 2005 again requesting relief under section 6015. The third

Form 8857 is identical to the second Form 8857.

      On July 25, 2011, the Commissioner issued Notice 2011-70, 2011-32 I.R.B.

135, announcing a change in policy under which a requesting spouse would no

longer be required to submit a request for equitable relief under section 6015(f)

within two years of the Commissioner’s first tax collection activity against such


      7
          We note that on the second Form 8857, petitioner also indicates that she
reviewed the tax return before it was signed. Furthermore, petitioner indicates that
she used joint accounts with Mr. Galvan and that she made deposits, paid bills,
balanced the checkbook, or reviewed the monthly bank statements. In addition
petitioner states that, at the time she signed the tax return, she knew that Mr. Galvan
had $207,046 of gambling income (which was the amount reported on the return),
and she knew that an amount was owed to the IRS. Moreover, petitioner indicates
that the former couple was having financial problems when the return was signed.
Finally, petitioner indicates that she was not a victim of spousal abuse or domestic
violence and did not sign the tax return under duress.
                                           -7-

spouse. Moreover, if an individual’s request for equitable relief was previously

denied solely for being untimely under the two-year deadline and that request was

not litigated, Notice 2011-70, supra, provides a transitional rule allowing such

individual to reapply for relief under section 6015(f) by filing a new Form 8857.

See Notice 2011-70, supra.

        The record includes a fourth Form 8857, signed by petitioner, bearing a date

of November 9, 2011, and again requesting relief under section 6015.8

        On January 5, 2012, the Commissioner issued Notice 2012-8, 2012-4 I.R.B.

309, providing a proposed revenue procedure that, if finalized, would, inter alia,

change the requirement of Rev. Proc. 2003-61, sec. 4.01(3), 2003-2 C.B. 296, 297,

and section 1.6015-5(b)(1), Income Tax Regs., that a requesting spouse must file a

claim for equitable relief no later than two years after the date of the

Commissioner’s first collection activity. The new requirement would provide that a

requesting spouse must file a claim for equitable relief before the expiration of the

period of limitations for collection under section 6502 or the period of limitations for

credit or refund under section 6511, if applicable. See Notice 2012-8, supra.




        8
            The fourth Form 8857 is virtually identical to the second and third Forms
8857.
                                         -8-

      On February 1, 2012, respondent mailed petitioner a letter (February 1, 2012

letter) informing her: “We received the additional information you sent us following

your receipt of the final determination letter we mailed you. We considered the

information and did not change our determination.” The February 1, 2012 letter

also states: “Your appeal time is expired. Your United States Tax Court petition

time is expired. There is no further Innocent Spouse issue.”

      On March 9, 2012, petitioner filed a petition with this Court. Petitioner

alleges in her petition that “[t]he Internal Revenue Service did not follow the

procedures or consider the factors for granting equitable relief outlined in Revenue

Procedure 2003-61.”

                                      Discussion

      The Tax Court is a court of limited jurisdiction and may exercise jurisdiction

only to the extent authorized by Congress. See sec. 7442; Naftel v.

Commissioner, 85 T.C. 527, 529 (1985). Jurisdiction must be proven affirmatively,

and a party invoking our jurisdiction bears the burden of proving that we have

jurisdiction over the party’s case. See Fehrs v. Commissioner, 65 T.C. 346, 348

(1975); Wheeler’s Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180

(1960); Natal Comm. to Secure Justice v. Commissioner, 27 T.C. 837, 839 (1957).

In order to meet this burden, the party must establish affirmatively all facts giving
                                         -9-

rise to our jurisdiction. See Wheeler’s Peachtree Pharmacy, Inc. v.

Commissioner, 35 T.C. at 180; Consol. Cos. v. Commissioner, 15 B.T.A. 645,

651 (1929).

      Petitioner frames her request as one for equitable relief under section

6015(f).9 Section 6015(e)(1)(A) generally provides us with jurisdiction to determine

the appropriate relief available to an individual under section 6015(f) when such

individual files a petition (1) within 90 days after the Commissioner mails, by

certified or registered mail to such individual’s last known address, a notice of the

Commissioner’s final determination with respect to a claim for equitable relief, or

(2) after six months have expired since the individual filed a claim for equitable

relief and no final determination has been issued. See Rule 320(b).

      Petitioner does not dispute that she failed to file a petition within the statutory

90-day period after respondent mailed the Final Determination on March 25, 2008.

However, in her Objection petitioner argues that “respondent has incorrectly

computed the time the petitioner was eligible to file her petition” under section



      9
          In the attachments to petitioner’s second, third, and fourth Forms 8857, she
alleges that “[i]t would be inequitable to hold * * * [her] responsible for any tax debt
for the tax year 2005”. Further, petitioner’s sole allegation in her petition to the
Court is that respondent “did not follow the procedures or consider the factors for
granting equitable relief outlined in Revenue Procedure 2003-61.”
                                         - 10 -

6015(e). In support of this assertion, petitioner argues that Notice 2011-70, supra,

and Notice 2012-8, supra, operate to treat her first Form 8857 as “facially defective

and a nullity”. In the supplement to her Objection, petitioner cites section 1.6015-

5(b)(5), Income Tax Regs. (dealing with premature requests for relief), and argues,

albeit necessarily in the alternative, that her first Form 8857 was “a premature

request for relief which the Internal Revenue Service should not have considered

and acted on”.

      Moreover, petitioner suggests that her fourth Form 8857 should be treated as

a qualifying request for relief under section 6015(f) and that respondent’s February

1, 2012 letter should be treated as a new final administrative determination

beginning a new 90-day period within which she was entitled to petition the Tax

Court. Under petitioner’s theory, she timely filed her petition within this new 90-

day period and thus respondent’s Motion To Dismiss should be denied. We

consider petitioner’s arguments in turn below.

      The Internal Revenue Code does not expressly address whether the Court has

jurisdiction over subsequent requests for relief that are submitted with respect to the

same tax year. Pursuant to section 6015(h), however, the Commissioner has

promulgated regulations to carry out the provisions of section 6015. Those

regulations generally provide that a qualifying election or request for relief under
                                          - 11 -

section 6015 is “the first timely claim for relief from joint and several liability for

the tax year for which relief is sought.” Sec. 1.6015-1(h)(5), Income Tax Regs.

(emphasis added).

      The regulations also provide:

      A requesting spouse is entitled to only one final administrative determination
      of relief under § 1.6015-1 [dealing with elections for relief under section
      6015(b) and (c), as well as requests for equitable relief under section
      6015(f)], for a given assessment unless the requesting spouse properly
      submits a second request for relief that is described in § 1.6015-1(h)(5).
      [Sec. 1.6015-5(c)(1), Income Tax Regs., emphasis added.]

      Petitioner does not assert that these regulations are invalid. Moreover,

petitioner does not contend that her second, third, or fourth Form 8857 constitutes a

second request for relief within the meaning of section 1.6015-1(h)(5), Income Tax

Regs.10

      Instead, petitioner asserts that her first timely claim for relief under section

6015 (i.e., her first Form 8857) should be treated as “facially defective and a

nullity”. Petitioner does not provide any direct authority to support her assertion but


      10
          Under sec. 1.6015-1(h)(5), Income Tax Regs., a qualifying election may
include a second election to allocate a deficiency under sec. 6015(c) where the
requesting spouse: (1) Made a first election under sec. 6015(c); (2) did not qualify
for 6015(c) relief at that time solely because she failed to satisfy the nonmarital or
separate-household requirements of sec. 6015(c)(3); and (3) subsequently satisfies
the sec. 6015(c)(3) requirements at the time of her second election to allocate a
deficiency under sec. 6015(c).
                                           - 12 -

points us to recent pronouncements made by the Commissioner. Specifically,

petitioner suggests that Notice 2011-70, supra, and Notice 2012-8, supra, should be

collectively interpreted in such a way as to allow us to ignore her first Form 8857

and treat her fourth Form 8857 as a qualifying request for equitable relief under

section 6015(f).

       We find nothing in Notice 2011-70, supra, or Notice 2012-8, supra, that

would suggest the outcome sought by petitioner. Petitioner appears to

misconstrue the recent pronouncements made by the Commissioner regarding the

two-year deadline for filing equitable requests for relief under section 6015(f).

Contrary to petitioner’s theory, those pronouncements do not operate to treat an

otherwise qualifying request for relief (i.e., the first timely filed request for relief)

as “facially defective and a nullity”.11 See sec. 1.6015-1(h)(5), Income Tax Regs.

Accordingly, we reject petitioner’s argument that Notice 2011-70, supra, and




       11
           Moreover, under the transitional rule announced in Notice 2011-70, 2011-
32 I.R.B. 135, individuals whose requests for equitable relief were denied solely for
untimeliness under the two-year deadline may reapply for relief under sec. 6015(f)
by filing a new Form 8857 with the Commissioner. Respondent, however, did not
deny petitioner’s first request for relief claimed on her first Form 8857 because such
request was untimely under the two-year deadline. Rather, petitioner’s first request
for relief was timely under the two-year deadline, and respondent denied such
request only after a determination on the merits.
                                           - 13 -

Notice 2012-8, supra, operate to treat her first Form 8857 as “facially defective and

a nullity”.

       Likewise, we reject petitioner’s argument that her first Form 8857 constituted

a premature claim and thus should have been ignored by respondent. “A premature

claim is a claim for relief that is filed for a tax year prior to the receipt of a

notification of an audit or a letter or notice from the IRS indicating that there may be

an outstanding liability with regard to that year.” Sec. 1.6015-

5(b)(5), Income Tax Regs. “A premature claim is not considered an election or

request under § 1.6015-1(h)(5).” Id.

       On May 28, 2007, respondent assessed the $4,186 tax liability pursuant to

section 6213(b)(1).12 The Form 4340 indicates that respondent mailed petitioner the


       12
           Respondent was authorized to make this assessment under sec. 6213(b)(1)
as a mathematical or clerical error because it was “‘an entry on a return of a
deduction * * * in an amount which exceeds a statutory limit imposed by subtitle A
[of tit. 26]’, which limit ‘is expressed * * * as a specified monetary amount’, and
‘the items entering into the application of such limit appear on such return’”. See
Perkins v. Commissioner, 129 T.C. 58, 65 n.8 (2007) (citing sec. 6213(g)(2)(E)).
With a math error, the Commissioner is authorized to correct the error, make an
additional assessment, and send a notice of the correction to the taxpayer. See
Heasley v. Commissioner, 45 T.C. 448, 457 (1966); Ciciora v. Commissioner, T.C.
Memo. 2003-202. The taxpayer then has 60 days to request an abatement of the
assessment. Sec. 6213(b)(2)(A). If the Commissioner receives a timely abatement
request, then he must abate the assessment and proceed under normal deficiency
procedures. Id. Petitioner does not allege that she filed an abatement request or
                                                                          (continued...)
                                        - 14 -

Notice of Balance Due that same day informing her of the $2,787 outstanding

balance. Petitioner’s first Form 8857 was not received by respondent until July 5,

2007. Therefore, petitioner received “a letter or notice from the IRS indicating that

there may be an outstanding liability with regard to” tax year 2005 before her first

Form 8857 was filed. See sec. 1.6015-5(b)(5), Income Tax Regs.

      Moreover, petitioner helped prepare the former couple’s tax return, reviewed

the return before signing it, and was aware that there was a balance due at the time

she signed the return on March 1, 2007. Petitioner signed the first Form 8857 on

April 15, 2007, and respondent received the first Form 8857 on July 5, 2007.13

Therefore, petitioner filed the first Form 8857 after she and Mr. Galvan signed and

filed their tax return indicating a balance due. Under these circumstances, petitioner

has failed to demonstrate that her first Form 8857 was premature. See Ewing v.

Commissioner, 118 T.C. 494, 505-506 (2002) (“In this situation, Congress’s

concern regarding premature requests for relief is not present”), rev’d on other

grounds, 439 F.3d 1009 (9th Cir. 2006).

      12
       (...continued)
otherwise disagreed with the math error assessment.
      13
           Although petitioner signed the Form 8857 on April 15, 2007, there is no
evidence to demonstrate that it was filed any time before July 5, 2007, the date it
was received by respondent as reflected on the Form 4340. Accordingly, we hold
that the first Form 8857 was filed on July 5, 2007.
                                           - 15 -

       Thus, petitioner’s second, third, and fourth Forms 8857 were not qualifying

requests for relief because none of those requests was the “first timely claim for

relief from joint and several liability for the tax year for which relief is sought”, i.e.,

tax year 2005. See sec. 1.6015-1(h)(5), Income Tax Regs. (emphasis added).

Further, we reject petitioner’s suggestion that respondent’s February 1, 2012 letter

constituted a notice of final determination within the meaning of section

6015(e)(1)(A)(i)(I). A requesting spouse is generally “entitled to only one final

administrative determination of relief” for a given assessment, and respondent

properly mailed the Final Determination on March 25, 2008. See sec. 1.6015-

5(c)(1), Income Tax Regs. Respondent’s February 1, 2012 letter did not purport to

be a final administrative determination of relief, and we find that respondent did not

intend it to be such. See Barnes v. Commissioner, 130 T.C. 248, 254-255 (2008).

       We have previously held that “[a]lthough the statute does not expressly

address whether an individual may invoke this Court’s jurisdiction by resubmitting a

previously denied request, we do not believe the 90-day limitations period of section

6015(e)(1)(A) should be defeated or protracted by the simple expedient of filing a

succession of duplicative claims.” Id. at 253-254. We conclude that petitioner’s

second, third, and fourth Forms 8857, as well as the attachments thereto, are
                                         - 16 -

duplicative claims “best characterized as seeking reconsideration of” petitioner’s

first Form 8857. See id. at 253.

                                      Conclusion

      In sum, Notice 2011-70, supra, and Notice 2012-8, supra, do not operate to

treat petitioner’s timely filed first Form 8857 as “facially defective and a nullity”.

Petitioner’s first Form 8857 was not a premature request for relief within the

meaning of section 1.6015-5(b)(5), Income Tax Regs. Petitioner’s second, third,

and fourth Forms 8857 were not qualifying requests for relief under section 1.6015-

1(h)(5), Income Tax Regs. Petitioner was not entitled to a second final

administrative determination of relief under section 1.6015-5(c)(1), Income Tax

Regs. Respondent’s February 1, 2012 letter does not constitute a notice of final

determination within the meaning of section 6015(e)(1)(A)(i)(I). Accordingly,

because petitioner failed to petition the Court within the 90-day period provided by

section 6015(e)(1)(A)(ii), we lack jurisdiction to decide petitioner’s case.

      To give effect to the foregoing,


                                                  An order granting respondent’s

                                         Motion To Dismiss, as supplemented, and

                                         dismissing this case for lack of jurisdiction

                                         will be entered.
