                        T.C. Memo. 2002-187



                      UNITED STATES TAX COURT



                 JACQUELYN BROWN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5978-00.              Filed August 5, 2002.



     Jacquelyn Brown, pro se.

     Richard A. Stone, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Petitioner filed a Form 8857, Request for

Innocent Spouse Relief, in which she sought relief from joint and

several liability for tax years 1988-90.   Respondent determined

that petitioner is not entitled to relief from joint and several

liability under section 6015(b), (c), or (f).   Petitioner filed a

petition under section 6015(e)(1) in which she contended that she
                               - 2 -

is entitled to relief from joint and several liability for those

years.

     Respondent now concedes that petitioner is entitled to

relief from joint liability for tax for 1989 and 1990, and for

tax arising from $2,923 of Hoffman J. Brown’s income in 1988.

After respondent’s concessions, the sole issue for decision is

whether respondent’s denial of petitioner’s request for relief

from the remainder of the 1988 tax liability was an abuse of

discretion.   We hold that it was not.

     Unless otherwise specified, section references are to the

Internal Revenue Code in effect for the applicable years.

References to Hoffman J. Brown (Brown) are to petitioner’s

husband.   References to the Browns are to petitioner and Brown.

                         FINDINGS OF FACT

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

A.   Petitioner, Her Husband, and Their Joint Tax Returns

     Petitioner resided in Baltimore, Maryland, when she filed

the petition in this case.   Brown was a minister at the Main

Street Baptist Church in Smithfield, Virginia, in 1988, 1989, and

1990.

     Brown reported the income from his ministry on Schedules C,

Profit or Loss From Business, attached to his and petitioner’s

1988-90 returns.
                                   - 3 -



B.   Assessment and Payment of the Browns’ 1988 Tax Liability

     Respondent mailed the Browns a notice of deficiency for

1988-90 on March 25, 1994.       In it, respondent determined that the

compensation that Brown had reported as income from self-

employment was wages.       Neither petitioner nor Brown filed a

petition in the Tax Court in response to the notice of

deficiency.    On August 10, 1994, respondent assessed taxes based

on the March 25, 1994, notice of deficiency.

     Respondent applied the Browns’ overpayments of tax for 1994,

1995, 1996, and 1997 to their 1988 tax liability as follows:

                Year of             Date           Amount
              overpayment          applied         applied

                1994             May 1, 1995         $179
                1995             Apr. 29, 1996      1,801
                1994             May 20, 1996       1,196
                1996             Apr. 21, 1997      2,507
                1997             May 18, 1998       3,054

     The Browns’ 1988 tax liability was paid in full on May 18,

1998.

                                  OPINION

     Petitioner contends that she is entitled to relief from

joint and several liability for 1988 under section 6015.       We

disagree.   Section 6015 does not apply to any liability for tax

arising before July 22, 1998, except to the extent it remained

unpaid as of that date.       Internal Revenue Service Restructuring

and Reform Act of 1998 (RRA), Pub. L. 105-206, sec. 3201(g)(1),

112 Stat. 740; Butler v. Commissioner, 114 T.C. 276, 281-282
                                   - 4 -

(2000).      Petitioner is not entitled to relief for 1988 under

section 6015 because the Browns’ 1988 tax liability was paid in

full on May 18, 1998, which is before July 22, 1998.       Miller v.

Commissioner, 115 T.C. 582, 587 (2000), affd. 21 Fed. Appx. 160

(4th Cir. 2001); Mlay v. IRS, 168 F. Supp. 2d 781, 785 (S.D. Ohio

2001).

       Congress expanded the relief available to joint filers by

repealing section 6013(e) in 1998 and enacting section 6015.       RRA

sec. 3201(a), (e)(1), 112 Stat. 734, 740.       Section 6015 applies

to any liability for tax arising on or before July 22, 1998, but

remaining unpaid as of that date.       RRA sec. 3201(g)(1), 112 Stat

740.       However, petitioner’s tax was paid in full before the

effective date of section 6015.       Thus, her claim is governed by

section 6013(e).1

       We are aware of no provision in the Internal Revenue Code

which allows us to grant relief under section 6013(e) to a

taxpayer, such as petitioner in this case, who filed a “stand-




       1
        The four requirements for relief under sec. 6013(e) are:
(1) A joint return was filed for the year at issue; (2) the
return contained a substantial understatement of tax attributable
to grossly erroneous items of the other spouse; (3) the spouse
seeking relief establishes that, in signing the return, he or she
did not know, and had no reason to know, of the substantial
understatement; and (4) it would be inequitable to hold the
spouse seeking relief liable for the substantial understatement.
Sec. 6013(e)(1).
                                - 5 -

alone” petition under section 6015(e)(1).2    Section 6015(e)(1)

provides jurisdiction to decide the appropriate relief available

to the taxpayer under section 6015.     It does not refer to section

6013(e), consistent with the repeal of section 6013(e) by the

RRA.

       To account for respondent’s concessions,

                                                  Decision will be

                                           entered under Rule 155.3




       2
        Under sec. 6013(e), a claim for relief in the Tax Court
was an affirmative defense in a deficiency proceeding.
Petitioner’s opportunity to raise an affirmative defense under
sec. 6013(e) in that fashion ended in 1994 when the 90-day period
to file a deficiency suit expired.
       3
        We infer that Hoffman J. Brown either had notice of his
right to intervene as contemplated by sec. 6015(e)(4) and Rule
325, or waived his right to that notice and the opportunity to
intervene, based on the fact that he attended trial with
petitioner, spoke on the record, and apparently supported
petitioner’s claim for relief under sec. 6015.
