                     T.C. Summary Opinion 2010-85



                        UNITED STATES TAX COURT



         THOMAS E. DYKES AND SALLY A. DYKES JASKE, Petitioners
            v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9866-09S.                Filed June 29, 2010.



     Mary M. Gillum, for petitioner Thomas E. Dykes.

     Sally A. Dykes Jaske, pro se.

     Caroline R. Krivacka, for respondent.



     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

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




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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be entered is not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case.

     Respondent determined a $852 deficiency in petitioners’ 2006

Federal income tax on the basis of the omission of $6,807 of

retirement income.    Petitioners now agree that the $6,807 of

retirement income is subject to tax, and respondent agrees that

petitioners are entitled to a $40 telephone excise tax credit.

Therefore, the only issue remaining is whether Sally A. Dykes

Jaske (petitioner) is entitled to relief from joint liability

under section 6015.

                             Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.

     At the time the petition was filed, petitioners resided in

Tennessee.

     Thomas E. Dykes (Mr. Dykes) received $6,807 of disability

pension income in 2006 from the National Electrical Benefit Fund.

Petitioner was aware that Mr. Dykes received the pension income

in 2006.   Petitioner prepared petitioners’ joint 2006 Federal

income tax return.    Petitioner reflected the pension income on

the timely filed tax return but did not include it as taxable

income.
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     Petitioners were divorced in 2007, and petitioner has since

remarried.   On April 24, 2009, respondent received from

petitioner a Form 8857, Request for Innocent Spouse Relief.

Petitioner asserts that when Mr. Dykes began to receive the

disability pension, she had been advised by a certified public

accountant that the payments were not taxable.   Petitioner also

states that she cannot afford to pay Mr. Dykes’ bills.     On the

Form 8857 petitioner lists $2,695 of monthly income and $2,629.70

of monthly expenses.

     Petitioner’s adjusted gross income in 2009 was reported on

her 2009 Federal income tax return in the amount of $34,793,

which is $2,899.40 of monthly income.

                            Discussion

     Section 6015 provides three types of relief from joint

liability.   Subsection (b) provides a form of relief available to

joint filers.   In order to qualify under subsection (b),

petitioner must not have known or had reason to know at the time

the return was signed that there was an understatement.

Petitioner was aware of the pension income paid to Mr. Dykes.

Knowledge of the omitted income is sufficient to disqualify her.

This Court has stated that where the spouse claiming relief under

section 6015(b) or (c) had actual knowledge of the transaction

giving rise to omitted income, relief was not available.     King v.

Commissioner, 116 T.C. 198, 203 (2001); Cheshire v. Commissioner,
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115 T.C. 183, 192-193 (2000), affd. 282 F.3d 326 (5th Cir.

2002)).    Therefore, petitioner had reason to know of the

understatement, and relief is not available under section

6015(b).

     Subsection (c) provides for relief from liability for a

deficiency when a joint return was filed and the taxpayers are no

longer married, are legally separated, or lived apart (i.e., were

not members of the same household).     Sec. 6015(c)(3)(A)(i).   A

taxpayer is not eligible for relief under subsection (c) if the

Commissioner demonstrates that the taxpayer had actual knowledge

of the items giving rise to the deficiency.     Sec. 6015(c)(3)(C).

     It is clear that petitioner had actual knowledge of the

omitted income.    Petitioner’s belief that the income was not

subject to tax does not affect her actual knowledge that the

income was received.    Accordingly, petitioner is not eligible for

relief under section 6015(c).

     In cases where relief is unavailable under section 6015(b)

and (c), section 6015(f) gives the Commissioner authority to

grant equitable relief on the basis of all the facts and

circumstances.    Rev. Proc. 2003-61, 2003-2 C.B. 296.   The factors

set forth in Rev. Proc. 2003-61, supra, include, inter alia,

whether the nonrequesting spouse abused the requesting spouse,

whether the nonrequesting spouse has a legal obligation to pay

the outstanding income tax liability under a divorce decree or
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agreement, whether there was significant benefit to the

requesting spouse, and whether the requesting spouse would suffer

economic hardship if relief were not granted.          Id. sec. 4.03,

2003-2 C.B. at 298-299.

       There are no allegations of spousal abuse and no provision

for the payment of any tax liabilities in the divorce decree.

Although there has been no significant benefit to petitioner,

both she and Mr. Dykes received the benefit of not paying tax on

the pension income.    On the basis of the facts herein, the only

potential basis for providing equitable relief under section

6015(f) is financial hardship.      At trial petitioner’s testimony

was short and petitioner simply stated that she could not pay the

tax.    Considering the tax amounts involved, and the information

in the record, we find her conclusory statement unconvincing.

Petitioner has not established that she is entitled to equitable

relief under section 6015(f).

       To reflect the foregoing,


                                                Decision will be entered

                                           under Rule 155.
