                        T.C. Memo. 2004-129



                      UNITED STATES TAX COURT



                  MARION GOLDIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12622-01.                Filed May 27, 2004.



     Marion Goldin, pro se.

     Taylor Cortright, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Respondent determined, inter alia, that

petitioner’s claim for a refund of tax paid for 1983 and 1984,

based on her claim for relief from joint liability for tax under

section 6015(f) for 1983 and 1984, was not timely.    Petitioner

filed a petition under section 6015(e)(1) seeking review of that

determination.
                                - 2 -

     The sole issue for decision is whether petitioner’s claim

for a refund of tax paid for 1983 and 1984 was timely.   We hold

that it was not.1

     Section references are to the Internal Revenue Code.

                          FINDINGS OF FACT

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

A.   Petitioner

     Petitioner resided in Washington, D.C., when she filed the

petition in this case.

     In 1983, petitioner was a producer for American Broadcasting

Co., Inc.   She earned $135,817 as a salaried employee in 1983.

She was also a salaried employee in 1984.    Petitioner’s husband

was a tax attorney.   He invested in Robotics, a tax shelter, in

1983-84.    Petitioner and her husband filed joint returns for 1983

and 1984 in which they reported losses and credits from Robotics.

Robotics items gave rise to deficiencies for 1983 and 1984, all

of which were attributable solely to petitioner’s husband.

     Petitioner’s husband died on September 16, 1992.




     1
        In light of our conclusion, we need not decide whether
petitioner qualifies for equitable relief from joint liability
under sec. 6015(f).
                              - 3 -

B.   Respondent’s Assessment of Tax for 1983 and 1984 Relating to
     Robotics, and Petitioner’s Payment of Tax and Letters to
     Respondent Relating to Those Taxes

     On July 24, 1995, respondent assessed tax of $7,565 and

interest of $15,126.16 for 1983, and tax of $1,996 and interest

of $3,337.78 for 1984.

     On a date not stated in the record, but before July 31,

1995, petitioner received notices of amounts due of $22,691.16

for 1983 and $5,333.78 for 1984.   On July 31, 1995, petitioner

sent a letter to respondent’s Appeals officer which reads as

follows:

          Thank you for being available to take my phone
     call earlier today and for your quick recall of my late
     husband, Norman Goldin, as well as that albatross:
     ROBOTICS Development Association.

          As I informed you, Norman died suddenly in
     September of 1992 and his death is something I have
     still not recovered from. I knew about Robotics only
     from his brief characterizations of the problems it was
     causing and of his similarly brief descriptions of
     conversations and correspondence with you and others at
     the IRS. It had clearly turned into a nightmare while
     he was alive; but I was comforted by the fact that he
     was handling it, had it under control and had
     apparently, prior to his death, come to a final
     settlement with the IRS on all the complex and
     convoluted issues involved.

          That belief was further reinforced by papers I
     received following his passing which indicated that a
     “O corrected” balance existed. I believe I received
     these notices in March of 1993, just six months after
     Norman’s death and literally just days after my Mother
     died, also in March of 1993. Of small comfort, but
     comfort nonetheless in the midst of all these
     tragedies, was the knowledge that at least I didn’t
     have to deal with Robotics; that Norman had handled it,
     as he had handled so much else, while he was alive.
                               - 4 -

          So you can imagine my horror when I opened my mail
     this past Friday and again on Saturday and found the
     enclosed “Notice(s) of Tax Due on Federal Tax
     Return(s)” of $5,333.78 and $22,691.16! All I could
     conclude was that Robotics had once again reared its
     ugly head, although that is impossible for me to
     believe after the huge amounts we have already paid to
     the IRS and the state of Maryland for this investment;
     and after all the hours and sweat and no doubt tears
     that Norman Goldin spent in working with you and other
     members of the IRS to achieve a fair, equitable and
     final settlement.

          As I told you in our telephone conversation: in
     trying to review the files last Sunday, they might as
     well have been written in Greek. Deciphering them is
     beyond my ability. Nor do I have any professional to
     turn to: no accountant or attorney handled this matter
     for us personally; Norman assumed sole responsibility
     for working out this mess. And now that he is gone, I
     don’t know what to do or where to turn to begin to
     resolve what has surely been assessed in error.

        *       *       *        *       *       *       *

          I wait anxiously to hear from you and trust that
     we will be able to resolve this in a fair and speedy
     fashion.

     On September 5, 1995, petitioner paid $7,565 of tax for

1983.   On September 6, 1995, petitioner paid tax of $1,996 for

1984.

     On October 3, 1995, Terrance L. Kohl (Kohl), petitioner’s

certified public accountant, sent a letter to respondent which

reads as follows:

     I was just recently retained by the late Mr. Goldin’s
     widow, Mrs. Marion F. Goldin concerning this tax matter
     [tax year 1983] in question.

     A quick review of the situation indicates that
     according to IRS notice of tax deficiency dated June
     30, 1995, shows $7,565; however your notice of Sept.
                              - 5 -

     25, 1995, Number CP 503 shows $15,134.78.    Would you
     please explain the difference.

     It is also my understanding that Mrs. Goldin paid the
     actual tax billed by IRS during the first week of
     September 1995.

     I look forward to your explanation and appreciate your
     assistance in clearing her file.

     On December 4, 1995, respondent assessed an accuracy-related

penalty for substantial valuation misstatement under section

6662(e) of $1,135 for 1983.

     On January 16, 1996, in response to a notice that petitioner

owed $2,284.88 in interest for 1983, petitioner wrote to

respondent as follows:

          I have no idea what this is all about. No Notice 680
     was enclosed. I have already been assessed & paid
     additional tax & penalty of almost $23,000. What else can
     you possibly want to extract from me & my dead husband? I
     am enclosing a copy of all the actions taken on this account
     since 1983. Surely this latest assessment is redundant & in
     error. Thank you.

     On January 22, 1996, petitioner paid interest of $15,592.79

for 1983 and $3,517.20 for 1984.

     On February 5, 1996, Kohl sent a letter (Kohl’s February 5,

1996, letter) to respondent which reads as follows:

          I have discovered, after a careful and detailed
     review of your audit findings and billings of
     additional tax and interest, that the additional tax
     due was computed without the benefit of income
     averaging. This resulted in a reduction of tax in the
     amount of $2,970.

               Tax computed by IRS                  $ 7,565
               Tax computed by Income Averaging       4,595
               Tax reduction                        $ 2,970
                               - 6 -

          This consequently causes a reduction in the
     interest billing of approximately $5,904.

     These findings create concern about the accuracy of the
     1982 and 1981 tax billings. Would you please recompute
     these two years considering the impact of Income
     Averaging.

     Enclosed are the following supporting schedules:

           1.   Review of Tax Year 1983
           2.   Schedule G Income Averaging - 1983 recomputed
           3.   Copy of IRS detailed interest calculation
                  Adjusted for affect (sic) of tax reduction.
           4.   Copy of Form 1040 Page 1 & 2 as originally
                  filed for years 1983, 1982, 1981
           5.   Review of tax year 1982, reflecting
                disallowance of Robotics and Schedule A
                Business Deductions

          There appears to be some confusion about whether
     or not the Schedule A Business deduction disallowance
     was included in the tax deficiency billed. It was
     included as proven by Schedule 5.

          Please review the data enclosed and adjust your
     billings accordingly. If I can be of any assistance in
     concluding this matter please do not hesitate to
     contact me. Please consider the taxpayer’s position,
     Mrs. Goldin has been widowed for the past several years
     and extremely flustrated (sic) by this entire mess.

C.   Petitioner’s Request for Relief From Joint Liability for
     1983-84

     On March 15, 1999, petitioner filed a Form 8857, Request for

Innocent Spouse Relief, for tax years 1981-84.   In the Form 8857,

petitioner requested relief from joint liability under section

6015.   She included a request for refund of tax paid for 1983-84

relating to Robotics.

     By letter dated December 3, 1999, respondent’s District

Director told petitioner that she was entitled to relief under
                                 - 7 -

section 6015(c) for all amounts owed as of July 22, 1998, but

that her request for refund was untimely.

     By letter to respondent’s Appeals officer dated December 19,

1999, petitioner told respondent that she disagreed with

respondent’s conclusion because it meant she was not entitled to

a refund.   On January 23, 2001, petitioner faxed copies of her

July 31, 1995, letter and Kohl’s October 3, 1995, letter to

respondent’s Appeals officer.    By letter to respondent’s Appeals

officer dated March 1, 2001, petitioner said that she did not

understand why she was not entitled to a refund.   By letter to

respondent’s Appeals officer dated March 16, 2001, petitioner

withdrew her claims under section 6015 for 1981 and 1982.

     Respondent determined on July 20, 2001, that petitioner

(1) is entitled to relief under section 6015(c) in the amount of

tax owed as of July 22, 1998 ($5,219 for 1983 and $48 for 1984),

(2) is not entitled to equitable relief under section 6015(f) for

1983 and 1984, and (3) is not entitled to a refund for 1983 and

1984 because her request for a refund was not timely.   Petitioner

timely filed a petition and an amended petition in which she

seeks review of respondent’s determination.

                                OPINION

A.   Petitioner’s Contentions

     Petitioner contends that it is inequitable to hold her

jointly liable for tax she paid before July 23, 1998, that is
                              - 8 -

attributable to her deceased husband’s interest in Robotics for

1983 and 1984, and that she is entitled to relief from joint

liability for tax under section 6015(f).   The relief that

petitioner requests is a refund of $23,157.79 for 1983 and

$5,513.20 for 1984.

     An informal refund claim must have a written component that

gives the Commissioner sufficient notice of the fact that the

taxpayer believes he or she has been erroneously subjected to tax

and that a refund is sought for a certain year or years.     Angelus

Milling Co. v. United States, 325 U.S. 293, 297-298 (1945);

United States v. Kales, 314 U.S. 186, 193-194, 196 (1941);

Disabled Am. Veterans v. United States, 227 Ct. Cl. 474, 650 F.2d

1178, 1180 (1981); Missouri Pac. R.R. Co. v. United States, 214

Ct. Cl. 623, 558 F.2d 596, 598 (1977); Barenfeld v. United

States, 194 Ct. Cl. 903, 442 F.2d 371, 374-375 (1971); Am.

Radiator & Standard Sanitary Corp. v. United States, 162 Ct. Cl.

106, 318 F.2d 915, 920 (1963); New England Elec. Sys. v. United

States, 32 Fed. Cl. 636, 641 (1995).

B.   Whether Letters Petitioner and Kohl Sent to Respondent
     Before September 5, 1997, Constitute a Claim for Refund of
     Taxes Petitioner Paid Relating to Robotics

     Petitioner contends that various letters she and Kohl sent

to respondent before September 5, 1997, made clear that Robotics

was her husband’s investment, that she did not know anything

about Robotics, that she was requesting a refund of tax paid for
                               - 9 -

1983 and 1984 attributable to Robotics, and that those letters

constitute a proper claim for refund of 1983 and 1984 taxes paid

relating to Robotics.

     Giving petitioner the benefit of the doubt, we read

petitioner’s pre-September 5, 1997, letters as voicing some of

the elements required for section 6015 relief.   However, those

letters did not and could not give respondent sufficient notice

that petitioner sought a refund for 1983 and 1984 under section

6015 because those letters were sent to respondent long before

section 6015 was enacted on July 22, 1998.   See Washington v.

Commissioner, 120 T.C. 137, 160-161 (2003) (the taxpayer’s tax

returns filed on or before April 15, 1998, could not adequately

notify the Commissioner of the basis for the taxpayer’s refund

claim because they were filed before section 6015 was enacted);

Bartman v. Commissioner, T.C. Memo. 2004-93.

     Under former section 6013(e), repealed in 1998, Internal

Revenue Service Restructuring and Reform Act of 1998 (RRA), Pub.

L. 105-206, sec. 3201(a), (e)(1), 112 Stat. 734, 740, a claim in

the Tax Court for relief from joint liability was an affirmative

defense in a deficiency proceeding.    Former section 6013(e) did

not allow us to grant relief to a taxpayer, such as petitioner,

who filed a "stand-alone” petition (i.e., one not related to a

deficiency proceeding).   See Brown v. Commissioner, T.C. Memo.

2002-187.   Thus, we are unable to grant relief to petitioner for
                                   - 10 -

1983 and 1984 under section 6013(e) because her pre-September 5,

1997, letters were not part of a deficiency case in this Court.

     Respondent concedes that Kohl’s February 5, 1996, letter, is

a claim for an $8,874 refund for 1983 based on income averaging.

Kohl’s February 5, 1996, letter discussed only income averaging

for 1983; it is not a claim for refund of taxes based on section

6015.

     We conclude that letters petitioner and Kohl sent to

respondent before September 5, 1997, do not constitute a claim

for refund of taxes paid for 1983 and 1984 based on section 6015.

C.   Whether Letters Petitioner Sent to Respondent After March
     15, 1999, Were Timely Refund Claims for Taxes She Paid
     Relating to Robotics for 1983 and 1984

        1.     Time Limits for Refund Claims Under Section 6015(f)

        A taxpayer may be entitled to a refund if relief is granted

under section 6015(f).       Sec. 6015(g)(1).   The time limits for

requesting a refund provided by section 6511 apply to refunds

sought under section 6015(f).       Sec. 6015(g)(1).   We next consider

whether the letters petitioner sent to respondent after March 15,

1999, constitute a timely refund claim under section 6511.

        A taxpayer may obtain a refund of overpaid tax if he or she

files a claim for refund within 3 years from the time the return

was filed or 2 years from the time the tax was paid, whichever is

later.       Sec. 6511(a).   Petitioner paid tax of $7,565 for 1983 on

September 5, 1995, and $1,996 for 1984 on September 6, 1995, and
                               - 11 -

interest of $15,592.79 for 1983 and $3,517.20 for 1984 on January

22, 1996.    Thus, petitioner had until September 5, 1997, to file

a claim for refund of 1983 tax, until September 6, 1997, to file

a claim for refund of 1984 tax, and until January 22, 1998, to

file a claim for refund of interest for 1983 and 1984.    Sec.

6511(a).

     2.     Petitioner’s Request for Relief Under Section 6015

     Section 6015 was enacted in 1998.    RRA sec. 3201(a).

Petitioner filed Form 8857 on March 15, 1999, in which she sought

a refund of tax paid for 1983 and 1984 related to Robotics.

March 15, 1999, is after the date for petitioner to timely

request a refund of tax or interest for 1983 and 1984.

Petitioner contends that the Form 8857 is a timely refund claim

because it is an amendment to the letters petitioner and Kohl

sent to respondent before September 5, 1997.    We disagree.

     A claim relates back to (i.e., is considered to be part of)

a prior, timely request if the taxpayer raises no new grounds for

relief in the later claim.    United States v. Andrews, 302 U.S.

517, 524 (1938).    The only ground for refund stated in Kohl’s

February 5, 1996, letter is income averaging for 1983.    As

discussed above at paragraph B, petitioner’s and Kohl’s pre-

September 5, 1997, letters did not adequately notify respondent

that the basis of petitioner’s claim for refund for 1983 and 1984

was section 6015, or raise a cognizable claim for refund under

former section 6013(e).    Thus, petitioner’s post-September 5,
                                - 12 -

1997, refund claim based on section 6015(f) does not relate back

to petitioner’s and Kohl’s pre-September 5, 1997, letters.

     Our conclusion is consistent with the conclusion of a

District Court which held that an untimely tax refund claim under

section 6511(a) for relief from joint liability under section

6015 did not relate back to a timely refund claim for a capital

loss deduction.    Choate v. United States, 218 F.R.D. 677 (S.D.

Cal. 2003).    The taxpayer in Choate filed joint returns for 1988

and 1989.    Taxes for those years were paid in full on May 13,

1998.    On January 22, 1999, the taxpayer filed a refund claim for

1989 based on a capital loss.    The Commissioner allowed the

claim.    On January 30, 2001, the taxpayer sought an additional

refund by filing a claim for relief from joint liability under

section 6015 for 1989.    The Commissioner disallowed the

additional refund claim because it was not timely filed under

section 6511(a).    The District Court said that the later claim

was not an amendment to the original claim because it would have

required examination of matters not germane to the original

claim.   Id. at 680.   The District Court held that it lacked

jurisdiction over the taxpayer’s claim for relief.    Id.

     Petitioner contends that the holding in Choate that the

claimed amendment to the taxpayer’s refund claim was untimely

does not apply here because of the following differences between

this case and Choate: (a) The taxpayer in Choate actually
                               - 13 -

received a refund, but she has not; (b) the taxpayer in Choate

was not granted relief under section 6015(c), but she was;

(c) jurisdiction was at issue in Choate but not here; (d) the

taxpayer in Choate argued that his refund claim for section 6015

relief was an amendment to a prior claim, but petitioner does not

so contend; (e) the taxpayer and his spouse in Choate were

divorced whereas petitioner was widowed; and (f) the taxpayer in

Choate tried to mix business activities of his former wife with

unrelated capital losses on real estate whereas petitioner’s sole

issue and reason for her refund claim is that her husband was

solely responsible for the tax.    We disagree that any of these

differences causes petitioner’s refund claim under section

6015(f) to relate back to Kohl’s February 5, 1996, letter or the

other letters sent before September 5, 1997, discussed above.

See United States v. Andrews, supra.

       Petitioner wrote to respondent on December 19, 1999, and

March 1, 2001, to appeal the denial of her request for refund

under section 6015(f).    These letters are no more a timely refund

claim than was petitioner’s request for relief under section

6015(f).

       Petitioner relies on Washington v. Commissioner, 120 T.C. at

162.    The taxpayer in Washington wrote a letter to a revenue

officer on July 15, 1998, stating that the 1989 tax liability was

attributable to her former husband and that garnishment of her

wages would cause her financial hardship, and requesting that her
                              - 14 -

account be placed in an “uncollectible status” and that penalties

and interest assessed against her be abated.    Id. at 141.    The

taxpayer wrote another letter to the revenue agent on March 13,

1999, stating that she was current with her filing obligations

and that garnishment of her wages would cause serious financial

hardship and asking that she be relieved of the 1989 tax

liability.   Id. at 141-142, 162.   We treated the July 15, 1998,

and March 13, 1999, letters as a request for relief under section

6015 because of the ongoing nature of the taxpayer’s request and

the closeness in time of the July 15, 1998, letter to the July

22, 1998, enactment date of section 6015.     Id.   Thus, we held

that the taxpayer was entitled to a refund of those payments of

tax applied to the 1989 liability within 2 years of her refund

request.   Id. at 163.

     Petitioner contends that her request for relief under

section 6015 is timely under Washington.    We disagree.   Unlike

the taxpayer in Washington, petitioner did not make a timely

request for a refund under section 6015(f).    We conclude that

Washington is distinguishable and does not control this case.

D.   Whether Time Limits Provided in Section 6511 Apply in This
     Case

     Petitioner points out that the time for her to request a

refund under section 6511 had expired before section 6015(f) was

enacted.   On the basis of this fact, petitioner contends that the

time limits provided in section 6511 should not apply in this
                                 - 15 -

case.     We disagree.   Relief provisions typically include an

effective date before which relief is not available.       See, e.g.,

Thurner v. Commissioner, 121 T.C. 43, 49 (2003); Washington v.

Commissioner, supra at 159-160 (Congress set a cutoff date for

claims for relief under section 6015); Miller v. Commissioner,

115 T.C. 582, 587-588 (2000), affd. 21 Fed. Appx. 160 (4th Cir.

2001).     The time limits under section 6511 apply to requests for

refund under section 6015.      Sec. 6015(g)(1).   Thus, refunds under

section 6015(f) are not available if not timely under section

6511.     Washington v. Commissioner, supra at 159-160.

        To reflect the foregoing,


                                                   Decision will be

                                            entered for respondent.
