                              T.C. Memo. 2013-178



                         UNITED STATES TAX COURT



                    DALE H. SANTA, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 27513-09L.                        Filed August 5, 2013.



      Melanie E. Marmion, for petitioner.

      John D. Davis, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      MARVEL, Judge: Pursuant to sections 6015(e), 6320, and 6330(d),1

petitioner seeks review of respondent’s determination to deny him relief from joint


      1
      Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect at all relevant times, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                         -2-

[*2] and several liability under section 6015(b), (c), and (f) and to sustain the

filing of a notice of Federal tax lien (NFTL) with respect to his unpaid Federal

income tax liability for 2002. The issues for decision are: (1) whether res judicata

bars petitioner’s claim for relief under section 6015 for 2002; (2) if petitioner’s

claim for relief under section 6015 is not barred, whether he is entitled to relief

from joint and several liability under section 6015 for 2002; and (3) whether the

Appeals Office abused its discretion in denying petitioner’s request for relief

under section 6015 when it sustained the filing of the NFTL.

                               FINDINGS OF FACT

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

facts and facts drawn from stipulated exhibits are incorporated herein by this

reference. Petitioner resided in Oregon when he petitioned this Court.

I.    Background

      Petitioner married Rebecca S. Santa on July 16, 1983. During the course of

the marriage Ms. Santa, who suffered from various addictions, sometimes made

poor financial decisions and hid those decisions from petitioner. For example, Ms.

Santa opened credit card accounts using post office boxes without petitioner’s

knowledge and forged petitioner’s signature to the title to petitioner’s vehicle so

that she could sell it to obtain cash. During 2002 and possibly for some time
                                         -3-

[*3] thereafter petitioner’s relationship with Ms. Santa was “off and on” and

petitioner and Ms. Santa sometimes resided apart.

      Because of Ms. Santa’s financial instability, petitioner maintained and used

a separate bank account. Petitioner was not aware of the bank accounts that Ms.

Santa used during 2002 and did not see any of the bank statements for the

accounts she used.

      In 2002 Ms. Santa withdrew $95,392 from a profit-sharing account that she

owned. Petitioner did not know of Ms. Santa’s profit-sharing account withdrawal

and did not benefit from it.

      Petitioner and Ms. Santa filed a joint Form 1040, U.S. Individual Income

Tax Return, for 2002.2 Ms. Santa provided the information the return preparer

used to prepare the 2002 joint return. Ms. Santa did not provide the preparer

information regarding the $95,392 that she withdrew from the profit-sharing

account or regarding wages from several of the jobs that she had during 2002, and

this income was not reported on the joint return. Petitioner did not know at the

      2
        The parties stipulated that petitioner and Ms. Santa jointly filed a 2002 tax
return. Petitioner testified, however, that the signature in his name on the 2002
return does not appear to be his and that Ms. Santa had previously forged his
signature for financial reasons. Petitioner also testified that he did not recall
whether he had signed the return. However, because the parties stipulated that
petitioner and Ms. Santa filed the joint return, and we so find, we do not address
whether petitioner actually signed the return.
                                         -4-

[*4] time the 2002 joint return was filed that Ms. Santa had failed to include the

profit-sharing account withdrawal and some of her wage income on the joint

return.

II.     Petitioner’s 2005 Tax Court Case

        On July 12, 2004, respondent mailed to petitioner a Notice CP-2000, which

proposed changes to petitioner and Ms. Santa’s joint 2002 return. Petitioner then

filed a Form 8857, Request for Innocent Spouse Relief (2004 Form 8857), with

respect to his joint income tax liability for 2002. On December 20, 2004,

respondent issued to petitioner a Letter 3661C, Requesting Spouse Preliminary

Determination Letter, proposing to deny petitioner relief from joint liability for

2002.

        On March 28, 2005, respondent mailed to petitioner and Ms. Santa separate

notices of deficiency for 2002. The notice of deficiency addressed to petitioner

did not mention petitioner’s request for relief from joint liability, nor did it make a

determination regarding that request. Petitioner and Ms. Santa filed separate

petitions disputing respondent’s deficiency determination for 2002.

        In his petition at docket No. 11744-05S (2005 petition) petitioner requested

relief from joint and several liability on the grounds that he was unaware that Ms.

Santa had withdrawn the funds from her profit-sharing account. Petitioner did not
                                          -5-

[*5] allege that he was separated from Ms. Santa. After filing his petition,

petitioner had limited correspondence or contact with respondent’s employees or

counsel. Petitioner did not notify the Court or respondent’s counsel about any

change of address during the pendency of the case.

       The Court set petitioner’s case for trial at the April 24, 2006, trial session in

St. Paul, Minnesota. Petitioner failed to appear when his case was called from the

calendar because he never received the notice scheduling the case for trial.

       On April 24, 2006, respondent’s counsel filed a motion to dismiss for lack

of prosecution in docket No. 11744-05S. On May 3, 2006, the Court entered an

order of dismissal and decision granting respondent’s motion and denying

petitioner’s claim for relief under section 6015. Although petitioner had not

specifically requested relief under any particular subsection of section 6015 in his

petition or alleged that he and Ms. Santa had been separated for more than 12

months or were divorced, the Court’s order and decision denied petitioner’s claim

for relief under section 6015(b), (c), and (f).

III.   Petitioner’s Divorce From Ms. Santa

       On October 29, 2007, Ms. Santa filed a petition for dissolution of marriage

without children in the Minnesota district court. In her divorce petition Ms. Santa
                                          -6-

[*6] stated that she had separated from petitioner on July 21, 2006. Petitioner and

Ms. Santa divorced on May 17, 2008.

IV.   Petitioner’s Present Case

      On May 16, 2008, respondent filed an NFTL against petitioner and Ms.

Santa for the unpaid joint tax liability for 2002. On May 20, 2008, respondent

issued to petitioner and Ms. Santa a notice of the NFTL filing.

      On June 10, 2008, petitioner filed a second Form 8857 (2008 Form 8857)

for 2002. In his 2008 Form 8857 petitioner stated that (1) he had been living apart

from Ms. Santa since May 1, 2002; (2) he and Ms. Santa had divorced on May 17,

2008; (3) he and Ms. Santa maintained joint accounts in 2002 but he had limited

or no use of the accounts; and (4) Ms. Santa “hid all bills from * * * [him] until

collectors would call * * * [him] at work.”3 On June 12, 2008, petitioner filed a

Form 12153, Request for a Collection Due Process or Equivalent Hearing, with

respect to his 2002 tax liability, requesting section 6015 relief and an offer-in-

compromise.4


      3
       In a letter dated May 10, 2008, petitioner wrote that “[w]e have been
separated since 2003 and finally divorce[d].”
      4
       On October 3, 2008, Tax Examiner Diana Kmit prepared workpapers with
respect to petitioner’s request for relief from his joint liability for 2002. Tax
Examiner Kmit preliminarily proposed to grant petitioner relief under sec. 6015(c)
                                                                           (continued...)
                                          -7-

[*7] On November 2, 2009, respondent mailed to petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320 and/or 6330

(notice of determination), sustaining the filing of the NFTL on the grounds that

petitioner’s section 6015 request had been denied5 and that he had submitted no

financial information that could be used to determine whether any collection

alternative would have been appropriate.




      4
        (...continued)
“for the portion [of petitioner’s joint 2002 liability] that is attributable to the * * *
[nonrequesting spouse’s] wages.” Tax Examiner Kmit’s workpapers further state
that Ms. Santa stated that petitioner “was aware she withdrew the profit sharing,
just not how much.” However, Tax Examiner Kmit rejected Ms. Santa’s statement
because “in EXAM work papers, * * * [Ms. Santa] states full amount of her profit
sharing was deposited into joint checking.” The exam workpapers, in turn, state
that Ms. Santa “did state that the full amount of the profit sharing distribution was
deposited into the joint checking account, and that she had full control of the
account.” Tax Examiner Kmit concluded that petitioner had actual knowledge of
Ms. Santa’s withdrawal from her profit-sharing account and thus was not eligible
for relief from the joint liability arising from that transaction under sec. 6015(b),
(c), and (f).
      5
        The notice of determination does not explain why the Appeals Office
denied petitioner’s sec. 6015 request. The administrative record, however, reveals
that on August 20, 2009, Appeals Officer Gloria L. Griffin wrote in an Appeals
Transmittal and Case Memo that petitioner “has not provided any information
which would qualify for relief of liability under * * * [sec.] 6015(b), (c), or (f). It
appears that * * * [petitioner] has already had the opportunity to appear in Tax
Court on this issue. * * * It appears that the Tax Court has made a ruling on the
* * * [sec. 6015] issue as it pertains to * * * [petitioner].”
                                         -8-

[*8] On November 13, 2009, petitioner mailed to this Court his petition (2009

petition), contesting respondent’s determination. In the petition, petitioner stated

that he and Ms. Santa “were separated in 2002 but filed jointly”. The only

contention petitioner makes in the 2009 petition is that he should be granted

section 6015 relief for the portion of his tax liability attributable to Ms. Santa’s

withdrawal from her profit-sharing account and her unreported wages.

                                      OPINION

      Because respondent denied petitioner’s timely section 6015 request in a

final notice of determination after conducting a section 6320 hearing, we would

ordinarily have jurisdiction to review respondent’s denial of his section 6015

request either (1) pursuant to sections 6320 and 6330(d) or (2) pursuant to section

6015(e). See Gray v. Commissioner, 140 T.C. ___, ___ (slip op. at 9) (Apr. 25,

2013); sec. 1.6015-7(b), Income Tax Regs. We first address petitioner’s claim for

relief pursuant to section 6015(e).

I.    Review Pursuant to Section 6015(e)

      A.     Section 6015 Elections and Requests

             1.     Generally

      Generally, married taxpayers who file a joint Federal income tax return are

jointly and severally liable for the tax reported or reportable on the return. Sec.
                                          -9-

[*9] 6013(d)(3); Butler v. Commissioner, 114 T.C. 276, 282 (2000). Section 6015

allows a spouse to obtain relief from joint and several liability in certain

circumstances. Section 6015(a)(1) provides that a spouse who has made a joint

return may elect to seek relief from joint and several liability under section

6015(b) (dealing with relief from liability for an understatement of tax with

respect to a joint return). Section 6015(a)(2) provides that an eligible spouse may

elect to limit that spouse’s liability for any deficiency with respect to a joint return

under section 6015(c) (dealing with relief from joint and several liability for

taxpayers who are no longer married, are legally separated, or are no longer living

together). If a taxpayer does not qualify for relief under either section 6015(b) or

(c), the taxpayer may seek equitable relief under section 6015(f).

      Petitioner seeks relief from the portion of his joint liability for 2002 arising

from Ms. Santa’s withdrawal from her profit-sharing account and her unreported

wages. Because we find that petitioner is entitled to the full relief that he seeks

under section 6015(c), we will address only petitioner’s claim for relief under that

section.

             2.     Section 6015(c)

      Under section 6015(c), if the requesting spouse is either (1) no longer

married to the nonrequesting spouse, (2) legally separated from the nonrequesting
                                        - 10 -

[*10] spouse, or (3) not a member of the same household as the nonrequesting

spouse during the 12-month period ending on the date such election is filed, the

requesting spouse may seek to limit his or her liability for a deficiency as provided

in section 6015(d). Sec. 6015(c)(1), (3)(A)(i). A requesting spouse may request

section 6015(c) relief any time after a deficiency is asserted but no later than two

years after the date on which the Secretary has begun collection activities with

respect to the requesting spouse. Sec. 6015(c)(3)(B).

      Section 6015(d) provides that, in general, any item giving rise to a

deficiency on a joint return is allocated to the spouses as if they had filed separate

returns. Sec. 6015(d)(3)(A). The requesting spouse is liable only for his or her

proportionate share of the deficiency that results from such allocation. Sec.

6015(d)(1). If an item giving rise to a deficiency provided a tax benefit on the

joint return to the nonrequesting spouse, the item is allocated to the nonrequesting

spouse. Sec. 6015(d)(3)(B); Hopkins v. Commissioner, 121 T.C. 73, 83-86

(2003). The requesting spouse bears the burden of establishing the amount of the

deficiency allocable to him or her. Sec. 6015(c)(2).

      Relief under section 6015(c) is not available where the Commissioner

proves that the requesting spouse had “actual knowledge, at the time such

individual signed the return, of any item giving rise to a deficiency * * * which is
                                         - 11 -

[*11] not allocable to such individual”.6 Sec. 6015(c)(3)(C). Actual knowledge is

“an actual and clear awareness (as opposed to reason to know) of the existence of

an item which gives rise to the deficiency (or portion thereof).” Cheshire v.

Commissioner, 115 T.C. 183, 195 (2000), aff’d, 282 F.3d 326 (5th Cir. 2002). In

the case of omitted income the requesting spouse must have had an actual and

clear awareness of the omitted income. See id.; see also sec. 1.6015-3(c)(2)(i)(A),

Income Tax Regs. The Commissioner bears the burden of showing that the

requesting spouse had actual knowledge, when signing the return, of any item

giving rise to the deficiency. Sec. 6015(c)(3)(C); sec. 1.6015-3(c)(2)(i), Income

Tax Regs.

             3.     Judicial Review Under Section 6015(e)

      Under section 6015(e), the requesting spouse may petition this Court to

review a denial of relief from joint and several liability from the earlier of (1) the

date that the Secretary mails to the requesting spouse a final determination letter or

(2) the date which is six months after the date that the requesting spouse elected

relief under section 6015(b) or (c) or requested relief under section 6015(f). See

sec. 6015(e)(1)(A)(i); sec. 1.6015-7(b), Income Tax Regs. The requesting spouse


      6
      Relief is also unavailable in certain situations involving fraud. See sec.
6015(c)(3)(A)(ii), (d)(3)(C).
                                        - 12 -

[*12] must petition the Court within 90 days after the date on the final

determination letter. See sec. 6015(e)(1)(A)(ii); sec. 1.6015-7(b), Income Tax

Regs. We apply a de novo standard and scope of review to a requesting spouse’s

election under section 6015(b) or (c) or request for relief under section 6015(f).

See Wilson v. Commissioner, 705 F.3d 980, 989, 994 (9th Cir. 2013), aff’g T.C.

Memo. 2010-134; Porter v. Commissioner, 132 T.C. 203, 210 (2009).

      We have jurisdiction in this case under section 6015(e) because petitioner

petitioned this Court within 90 days of receiving a final notice of determination

with respect to his request for relief under section 6015. See sec.

6015(e)(1)(A)(ii); sec. 1.6015-7(b), Income Tax Regs.

      B.     Whether Res Judicata Bars Petitioner’s Section 6015(c) Claim

      When a court of competent jurisdiction enters a final judgment on the merits

of a cause of action, the doctrine of res judicata, if properly and timely invoked,

binds the parties to the judgment as to all matters that were or could have been

litigated and decided in the proceedings. See Commissioner v. Sunnen, 333 U.S.

591, 597 (1948); Hemmings v. Commissioner, 104 T.C. 221, 231-232 (1995);

Jefferson v. Commissioner, 50 T.C. 963, 966-967 (1968). The doctrine promotes

judicial economy by precluding repetitious lawsuits. See Commissioner v.

Sunnen, 333 U.S. at 597; Gustafson v. Commissioner, 97 T.C. 85, 91 (1991).
                                        - 13 -

[*13] Federal income taxes are determined annually, with each year being a

separate cause of action. Res judicata is applied to bar subsequent proceedings

involving the same tax year. Commissioner v. Sunnen, 333 U.S. at 597-598.

Common law principles of res judicata generally bar a party to a prior proceeding

for the same tax year from seeking relief from joint and several liability regardless

of whether the party raised the claim in the prior proceeding. Vetrano v.

Commissioner, 116 T.C. 272, 280 (2001). However, because res judicata is an

affirmative defense that must be pleaded in the answer, respondent bears the

burden of proving that petitioner’s section 6015(c) claim is precluded under the

doctrine of res judicata. See Rules 39, 142(a); Calcutt v. Commissioner, 91 T.C.

14, 20-21 (1988).

      Section 6015(g)(2) limits the common law doctrine of res judicata as it

applies to claims for relief under section 6015. Under section 6015(g), res judicata

bars a taxpayer from requesting relief from joint and several liability if (1) such

relief was an issue in the prior proceeding, or (2) the Court decides that the

taxpayer participated meaningfully in the prior proceeding. Sec. 6015(g)(2); see

Koprowski v. Commissioner, 138 T.C. 54, 65 (2012); Deihl v. Commissioner, 134

T.C. 156, 161 (2010); Vetrano v. Commissioner, 116 T.C. at 278; sec.

1.6015-1(e), Income Tax Regs. Petitioner bears the burden of proving that he did
                                        - 14 -

[*14] not participate meaningfully in the prior litigation within the meaning of

section 6015(g)(2). See Deihl v. Commissioner, 134 T.C. at 162; Monsour v.

Commissioner, T.C. Memo. 2004-190, 88 T.C.M. (CCH) 144, 152 (2004).

      Petitioner contends that res judicata should not preclude his section 6015(c)

claim because he did not specifically plead or otherwise request relief under

section 6015(c) in his 2005 petition and he was ineligible for relief under section

6015(c) at that time.

      Petitioner’s 2004 Form 8857 is not in the record. Petitioner’s 2005 petition,

filed June 27, 2005, does not invoke section 6015(c) or allege that petitioner and

Ms. Santa were separated at that time. The order of dismissal and decision in the

2005 Tax Court case is dated May 3, 2006.

      Respondent contends that several of petitioner’s statements show that he

was eligible for relief under section 6015(c) during the pendency of the 2005 Tax

Court case. In a letter dated May 10, 2008, petitioner wrote that “[w]e have been

separated since 2003 and finally divorce[d].” On petitioner’s 2008 Form 8857 he

stated that he had been married to and living apart from Ms. Santa since May 1,

2002 and that he had been divorced from Ms. Santa since May 17, 2008. In his

2009 petition, petitioner stated that “[w]e were separated in 2002 but filed jointly”.

However, petitioner testified that his relationship with Ms. Santa was “off and on”
                                        - 15 -

[*15] in 2002, and Ms. Santa stated in her divorce petition, filed in the Minnesota

district court, that she separated from petitioner on July 21, 2006.

      On brief petitioner explains his previous statements that he separated from

Ms. Santa in 2002 or 2003 by stating that he and Ms. Santa had lived together

sporadically since that time and were thus not living apart within the meaning of

section 6015(c) during the pendency of the 2005 Tax Court case. Additionally,

petitioner’s contention that he and Ms. Santa were not living apart within the

meaning of section 6015(c) is supported by Ms. Santa’s statement that she

separated from petitioner on July 21, 2006. Other than petitioner’s own

statements, which we find to be inconclusive, respondent has introduced no

evidence showing that petitioner and Ms. Santa were separated for 12 months at

any time before the entry of decision in the 2005 Tax Court case. See sec.

6015(c)(1), (3)(A)(i).

      In Deihl v. Commissioner, 134 T.C. at 166, we held

      that for purposes of section 6015(g)(2), an election under section
      6015(c) shall not be deemed to have been an issue in a prior
      proceeding where the requesting spouse’s original request for relief
      under section 6015 did not specifically invoke section 6015(c) and
      the requesting spouse was ineligible to make an election under
      section 6015(c) at the time * * *
                                         - 16 -

[*16] Like the taxpayer in Deihl, petitioner did not specifically invoke section

6015(c) in his 2005 petition, and respondent has not shown that petitioner was

eligible to elect relief under section 6015(c) when he first requested relief under

section 6015 and when he filed his 2005 petition.

      Because respondent has neither shown that section 6015(c) was in issue in

the 2005 Tax Court case nor shown that petitioner was eligible to elect relief under

section 6015(c) during the pendency of that case, respondent has failed to show

that petitioner litigated, or could have litigated, his claim for relief under section

6015(c) in the 2005 Tax Court case. Accordingly, we conclude that section

6015(g)(2) does not bar petitioner from asserting his claim for relief under section

6015(c) in this proceeding. See Commissioner v. Sunnen, 333 U.S. at 597;

Hemmings v. Commissioner, 104 T.C. at 231; sec. 1.6015-1(e), Income Tax Regs.

(res judicata bars relief under section 6015 only where section 6015 relief was at

issue in the prior proceeding or “the requesting spouse meaningfully participated

* * * and could have raised relief under section 6015” in the prior proceeding

(emphasis added)).

      C.     Petitioner’s Claim for Relief Under Section 6015(c)

      The parties agree that petitioner is eligible to elect relief under section

6015(c) because he and Ms. Santa divorced on May 17, 2008. See sec.
                                          - 17 -

[*17] 6015(c)(3)(A)(i). The parties also agree that the funds that Ms. Santa

withdrew from the profit-sharing account and her unreported wages are properly

allocable to her. See sec. 6015(d)(3)(A). The parties disagree, however, as to

whether petitioner actually knew that Ms. Santa withdrew the funds from the

profit-sharing account when he signed the 2002 return. See sec. 6015(c)(3)(C).

      Respondent contends that petitioner knew that Ms. Santa had withdrawn the

funds from the profit-sharing account when he signed the 2002 return because Ms.

Santa had deposited the proceeds into a joint account that she shared with

petitioner.7 However, respondent has introduced no evidence to support his

contentions.8 Moreover, petitioner credibly testified that he maintained his own

      7
        Although we asked the parties to brief the merits of petitioner’s claim for
relief under sec. 6015, respondent failed to address this issue in his opening brief.
We could treat respondent’s failure to address petitioner’s claim for relief under
sec. 6015 in his opening brief as a concession or abandonment of the issue. See
Rules 123(a), (b), 151(e)(5); Lunsford v. Commissioner, 117 T.C. 183, 187 n.6
(2001); Misle v. Commissioner, T.C. Memo. 2000-322, 80 T.C.M. (CCH) 518,
530 (2000). We choose, instead, to decide the issue on the merits. See, e.g.,
Stanwyck v. Commissioner, T.C. Memo. 2012-180, 103 T.C.M. (CCH) 1955,
1957 (2012); AmeriSouth XXXII, Ltd. v. Commissioner, T.C. Memo. 2012-67,
103 T.C.M. (CCH) 1324, 1327 (2012).

      Additionally, respondent never addressed the issue of whether petitioner
knew that Ms. Santa had unreported wage income when he signed the 2002 return.
We conclude that respondent conceded this issue.
      8
          At trial petitioner’s counsel objected to the introduction of any out-of-court
                                                                           (continued...)
                                        - 18 -

[*18] bank account during 2002 and that he had no knowledge of Ms. Santa’s use

of any particular bank account or accounts. We hold that petitioner has satisfied

all requirements for relief under section 6015(c) on the portion of the 2002

deficiency allocable to Ms. Santa under section 6015(d)(3)(A) and that respondent

has failed to prove that petitioner knew of Ms. Santa’s omitted income when he

signed the return. See sec. 6015(c)(3)(C); sec. 1.6015-3(c)(2)(i), Income Tax

Regs.

II.     Review Pursuant to Sections 6320 and 6330(d)

        Section 6321 imposes a lien on all property and property rights of a

taxpayer liable for taxes where a demand for the payment of the taxes has been

made and the taxpayer fails to pay. The Internal Revenue Service is authorized to

file an NFTL with respect to taxpayers who have outstanding tax liabilities and

fail to pay after notice and demand. Sec. 6323. Section 6320(a) requires the




        8
        (...continued)
statements of Ms. Santa appearing in the administrative record. Respondent’s
counsel conceded that any such statements would be hearsay. Accordingly, we
admitted the administrative record into evidence subject to petitioner’s hearsay
objection. See Fed. R. Evid. 802, 803, 804, 807. Nevertheless, respondent relies
on this hearsay evidence from the administrative record in his reply brief. We
reject respondent’s attempt to rely on hearsay evidence.
                                        - 19 -

[*19] Secretary9 to send written notice to the taxpayer of the filing of an NFTL

and of the taxpayer’s right to an administrative hearing on the matter. The conduct

and the scope of section 6320 hearings are governed by section 6330(c), (d) (other

than paragraph (2)(B)), (e), and (g). Sec. 6320(c).

      At the hearing a taxpayer may raise any relevant issue, including

appropriate spousal defenses, challenges to the appropriateness of the collection

action, and collection alternatives, such as an offer-in-compromise or an

installment agreement. Sec. 6330(c)(2)(A). The taxpayer is precluded, however,

from raising an issue at a section 6320 hearing if the issue was raised and

considered at a previous administrative or judicial proceeding and the taxpayer

participated meaningfully in that proceeding. Sec. 6330(c)(4); Swanson v.

Commissioner, 121 T.C. 111, 118 (2003). Following the hearing the Appeals

Office must issue a notice of determination regarding the validity of the NFTL.

      Pursuant to sections 6320 and 6330(d)(1), we have jurisdiction to review the

Appeals Office’s determination. See Murphy v. Commissioner, 125 T.C. 301, 308

(2005), aff’d, 469 F.3d 27 (1st Cir. 2006). Where, as here, the underlying tax

liability is not properly at issue, we review the administrative determination of the


      9
       The term “Secretary” means the Secretary of the Treasury or his delegate.
Sec. 7701(a)(11)(B).
                                          - 20 -

[*20] Appeals Office for abuse of discretion. Lunsford v. Commissioner, 117 T.C.

183, 185 (2001); Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v.

Commissioner, 114 T.C. 176, 182 (2000). In reviewing for abuse of discretion, we

must uphold the Appeals Office’s determination unless it is arbitrary, capricious,

or without sound basis in fact or law. See, e.g., Murphy v. Commissioner, 125

T.C. at 320; Taylor v. Commissioner, T.C. Memo. 2009-27, 97 T.C.M. (CCH)

1109, 1116 (2009); see also Keller v. Commissioner, 568 F.3d 710, 716 (9th Cir.

2009) (“‘Abuse of discretion occurs when a decision is based on an erroneous

view of the law or a clearly erroneous assessment of the facts.’” (quoting Fargo v.

Commissioner, 447 F.3d 706, 709 (9th Cir. 2006))), aff’g in part T.C. Memo.

2006-166.

         Because we conclude that petitioner is entitled to relief under section

6015(c) and petitioner raised no other issues in his petition, we need not decide

whether the Appeals Office otherwise erred in sustaining the filing of the NFTL.

         We have considered the parties’ remaining arguments and, to the extent not

discussed above, conclude that those arguments are irrelevant, moot, or without

merit.
                                         - 21 -

[*21] Because it is unclear whether any portion of the outstanding liability is

attributable to petitioner and to reflect the foregoing,


                                                       Decision will be entered under

                                                  Rule 155.
