                  T.C. Summary Opinion 2004-165



                      UNITED STATES TAX COURT



     LOUISE COLEMAN, Petitioner, FRED L. NUBIN, Intervenor,
         v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2557-04S.                Filed December 6, 2004.


     Louise Coleman, pro se.

     Fred L. Nubin, pro se.

     Mindy S. Meigs, for respondent.



     PAJAK, Special Trial Judge: This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   Unless otherwise

indicated, section references are to the Internal Revenue Code in

effect for the year in issue.   The decision to be entered is not

reviewable by any other court, and this opinion should not be

cited as authority.
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     Respondent issued to petitioner a Final Notice determining

that petitioner was not entitled to allocate the deficiencies for

1989 and 1990 under section 6015(c).    Petitioner timely filed her

Petition, and then Fred L. Nubin (intervenor) filed a Notice Of

Intervention.   After a concession by respondent that petitioner

is entitled to relief from joint and several liability under

section 6015(c), this Court must decide whether respondent erred

in granting relief to petitioner under section 6015(c).

     Most of the facts in this case have been stipulated and are

so found.   Petitioner resided in Los Angeles, California, at the

time she filed her petition.    Intervenor resided in Thomaston,

Georgia, at the time of the filing of the Notice of Intervention.

     On March 19, 1976, petitioner and intervenor were married.

Petitioner was 34 years old, and intervenor was 50 years old at

the time of their marriage.    In 1978, a daughter was born to

petitioner and intervenor.

     Intervenor started the business activity, Fred Nubin

Building Maintenance, prior to the marriage.    The business

provided janitorial services.    During their marriage, intervenor

operated the business.

     During the 1989 and 1990 taxable years in issue, petitioner

and intervenor were married and living together.    During 1989 and

1990, petitioner was not employed on a full-time basis.

Petitioner and intervenor’s divorce was made final on March 3,
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1995.

     Petitioner and intervenor jointly filed U.S. Individual

Income Tax Returns, Forms 1040, for 1989 and 1990.

     Attached to the 1989 joint tax return is a Schedule C,

Profit or Loss From Business.   The Schedule C lists the name of

the proprietor as Fred L. Nubin and the name of the business as

Fred Nubin Building Maintenance.   Attached to the 1989 joint tax

return is a Schedule SE, Social Security Self-Employment Tax.

This Schedule SE lists the name of the person with self-

employment income as Fred L. Nubin.

     No notices of deficiencies were issued by respondent.        On

May 21, 1993, Steven A. Kovary, a representative of petitioner

and intervenor, executed a consent to assessment and collection

on behalf of both of them for 1989 and 1990.      Petitioner and

Intervenor stipulated that they do not dispute the assessed tax

liabilities and additions to tax with respect to the 1989 and

1990 taxable years.   A large part of the liabilities was

attributable to omissions of $28,408 and $23,420 of gross

receipts on the Schedules C attached to the 1989 and 1990

returns, respectively.   Respondent also made some minor

adjustments in both years.

     Neither petitioner nor intervenor made any voluntary

payments to the Commissioner with respect to their joint income

tax liabilities for 1989 and 1990.      Petitioner’s income tax
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refunds for the taxable years 2000, 2001, and 2002 were applied

to the joint income tax liability owing for 1989.

     On December 2, 2002, respondent received from petitioner a

Form 8857, Request For Innocent Spouse Relief.   On January 3,

2003, respondent received from intervenor a Form 12507, Innocent

Spouse Statement.   On December 5, 2003, respondent issued to

petitioner a Final Notice denying her request for relief.    This

case is based on that Final Notice.

     Section 6015 allows an individual to seek relief from joint

and several liability on a joint return.   Section 6015(c) allows

proportionate tax relief through allocation of the deficiency

between individuals who filed a joint return.

     Respondent met with petitioner and intervenor.   Based on

that interview and documents provided, respondent concluded that

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

respect to the 1989 and 1990 liabilities remaining unpaid.

     When asked during trial whether intervenor was saying

petitioner omitted the income from the returns, he responded:

“No.”   Intervenor admitted that petitioner’s only relationship to

the tax returns in question was that she signed the returns.     The

record shows that the business was intervenor’s.    He was the one

who initially started the business, and he was the one who

carried on the business.   Intervenor was the one who reported

self-employment tax.   Petitioner testified that intervenor always
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brought completed returns home for her to sign.      Because

petitioner did nothing other than sign completed returns, it is

obvious that intervenor is the one who omitted substantial

amounts of income when he prepared the returns.      There was no

evidence that petitioner had actual knowledge of the omitted

income.   Sec. 6015(c)(3)(C).   The record contains no reasons or

facts which showed error in respondent’s concession.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                             Decision will be

                                        entered for petitioner.
