                        T.C. Memo. 2003-166



                      UNITED STATES TAX COURT



                 LAURA L. BROOKS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8833-01.              Filed June 5, 2003.


     Laura L. Brooks, pro se.

     Stephen R. Takeuchi and Michael Pesavento, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     FOLEY, Judge:   By notice of deficiency dated April 13, 2001,

respondent determined a $3,526 deficiency relating to

petitioner’s 1997 tax year.   The issue for decision is whether

petitioner is entitled to relief from joint and several liability
                               - 2 -

pursuant to section 6015(b), (c), or (f).1   Petitioner does not

otherwise contest respondent’s deficiency determination.

                        FINDINGS OF FACT

     Petitioner and Ronald Tice were married from 1994 to 1998.

Petitioner was responsible for the household finances.    During

their marriage, Mr. Tice was verbally abusive towards petitioner,

and on several occasions, including one in 1997, petitioner

obtained a protective order against Mr. Tice.

     During 1997, petitioner was a medical assistant for Dr.

William Fleming, and Mr. Tice performed services for Prestige

Home Centers, Inc. (Prestige), Kelly Services, Inc. (Kelly), and

T.D.I., Inc. (TDI).

     In 1996, Mr. Tice began driving rental trucks from Florida

to other States (e.g., New York and Michigan) for TDI and

informed petitioner of his pay rate of 19 cents per mile.      Mr.

Tice was away from home 3 weeks each month he worked for TDI and

would inform petitioner of his whereabouts en route or when he

arrived at his destination.   Petitioner was aware of the

approximate amount of Mr. Tice’s weekly income from TDI.

     Petitioner believed Mr. Tice’s truck driving required him to

spend too much time away from home.    In response, Mr. Tice

promised that he would stop working for TDI.    Despite Mr. Tice’s



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                                - 3 -

driving for TDI for 6 or 7 months in 1997, at the time their 1997

joint Federal income tax return (the joint return) was filed,

petitioner knew only that he worked at least 3 months for TDI

during that year.

       In 1997, petitioner and Mr. Tice began experiencing serious

marital difficulties.    On January 26, 1998, petitioner prepared

the joint return and attached Forms W-2, Wage and Tax Statement,

from Prestige and Kelly.    When petitioner asked Mr. Tice for a

Form W-2 from TDI, Mr. Tice told her that he would “take care of

it”.

       A Form 1099 was not sent to petitioner’s residence, and the

joint return did not include compensation TDI paid to Mr. Tice.

In 1999, respondent notified petitioner of proposed changes to

the joint return relating to Mr. Tice’s compensation from TDI

(i.e., $9,133) and a resulting disallowance of the claimed earned

income tax credit (i.e., $961).    Petitioner subsequently filed a

Form 8857, Request for Innocent Spouse Relief, in which she

contended that, at the time the return was filed, she was not

aware that Mr. Tice had self-employment income from TDI.

       By letter dated February 8, 2000, respondent notified Mr.

Tice of petitioner’s contention that she should be relieved from

joint and several liability pursuant to section 6015 (section

6015 relief).    In his response dated February 15, 2000, Mr. Tice

contended that petitioner was not entitled to section 6015

relief.
                                - 4 -

       On September 18, 2000, respondent determined petitioner was

not entitled to section 6015 relief because she had actual

knowledge of the income that caused the understatement of tax,

and it would not be inequitable to hold petitioner liable for the

tax.    By notice dated September 25, 2000, respondent informed

petitioner of his determination.

       On July 12, 2001, petitioner, while residing in Silver

Springs, Florida, filed her petition with this Court, in which

she contends that she is entitled to section 6015 relief.       On

September 10, 2001, respondent gave notice of petitioner’s

contention to Mr. Tice.

                               OPINION

       Respondent contends that petitioner is not entitled to

section 6015 relief because she knew the nature of Mr. Tice’s

work with TDI, the amount he was paid, and that such compensation

was not reported on their joint return.      Respondent contends

that, but for the omission of income relating to TDI, petitioner

and Mr. Tice would not have qualified for a $961 earned income

credit.

       Generally, taxpayers filing joint Federal income tax returns

are jointly and severally liable for all taxes due.      Sec.

6013(d)(3).    In limited situations, however, taxpayers may be

relieved of joint liability.    Sec. 6015.    Petitioner is not

entitled to relief pursuant to section 6015(b) or (c), if she had
                               - 5 -

actual knowledge of the item giving rise to the omitted income.

E.g., Jonson v. Commissioner, 118 T.C. 106, 115 (2002); Cheshire

v. Commissioner, 115 T.C. 183 (2000), affd. 282 F.3d 326 (5th

Cir. 2002); see also Charlton v. Commissioner, 114 T.C. 333

(2000); sec. 1.6015-3(c), (d)(3), Income Tax Regs.   Petitioner,

who prepared and filed the joint return, omitted Mr. Tice’s

income relating to TDI.   She knew Mr. Tice’s compensation rate

during the period he worked for TDI.   Thus, petitioner had actual

knowledge of 50 percent of the item of income giving rise to the

deficiency.   See sec. 1.6015-3(c)(4), Example (4)(ii), Income Tax

Regs.   Accordingly, pursuant to section 6015(b) and (c),

petitioner is not relieved of liability for the tax deficiency

attributable to 50 percent of the omitted income.

     Pursuant to section 6015(f), respondent is granted

discretion to award relief from joint and several liability where

such relief is otherwise unavailable pursuant to section 6015(b)

or (c) if the facts and circumstances indicate that it would be

inequitable to hold the spouse seeking relief liable for the

deficiency.   We conclude that it would not be inequitable to hold

petitioner liable for the remaining portion of the deficiency

(i.e., the portion attributable to 50 percent of the omitted

income).   She knew of 50 percent of the omitted income and failed

to establish economic hardship or that Mr. Tice had the legal

obligation to pay the additional tax liability.   See Rev. Proc.
                                 - 6 -

2000-15, 2000-1 C.B. 447.   In addition, petitioner did not

establish that she had not benefited from the TDI income or the

earned income credit refund.   Accordingly, respondent’s denial of

relief pursuant to section 6015(f) was not an abuse of

discretion.   See Butler v. Commissioner, 114 T.C. 276 (2000).

     To reflect the foregoing,



                                           Decision will be entered

                                     under Rule 155.
