                       T.C. Memo. 2009-137



                     UNITED STATES TAX COURT



                 STEVEN M. MCDANIEL, Petitioner,
               AND DANIELLE AZCONA, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24702-06.             Filed June 15, 2009.



     Paul M. Kohlhoff, for petitioner.

     Danielle Azcona, pro se.

     Julie A. Jebe, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GOLDBERG, Special Trial Judge:   Respondent assessed

deficiencies in Federal income tax of $10,455 and $14,700 for

2002 and 2003, respectively, against Steven M. McDaniel

(petitioner) and Danielle Azcona (intervenor) based on their
                                 - 2 -

joint Federal income tax returns.    Petitioner applied to the

Internal Revenue Service (IRS) for relief from joint and several

liability, commonly called innocent spouse relief.    After

receiving no response and waiting the requisite period petitioner

filed a stand-alone petition with this Court.1   After the

petition was filed and before trial respondent stipulated that

petitioner is entitled to full innocent spouse relief under

section 6015(c).

     The petition also included a claim for abatement of interest

under section 6404(e).   Respondent moved to dismiss petitioner’s

interest abatement request on the ground that the Court lacks

jurisdiction because petitioner had not applied for abatement of

interest and the IRS had not issued a determination denying an

abatement request.   Petitioner replied that he did not oppose the

motion, because respondent had stipulated that he owed no tax and

therefore he owed no interest.

     Because intervenor appeared at the trial and opposed the

innocent spouse relief, the issues for decision are:    (1) Whether

under section 6015(c) petitioner is entitled to relief from joint

and several liability for 2002 and 2003; and (2) whether we

should grant respondent’s motion to dismiss for lack of




     1
      A stand-alone petition in this context means that
petitioner requested relief from joint and several liability and
did not also request a redetermination of the deficiencies.
                                - 3 -

jurisdiction regarding petitioner’s section 6404(e) interest

abatement request.

     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.    All amounts are rounded

to the nearest dollar.

                          FINDINGS OF FACT

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Indiana at the time he filed his petition.

     After graduating from high school in 1990 petitioner

attended vocational school and worked at several jobs.    Around

1993 petitioner met intervenor, the sister of a friend, while

intervenor was a student at Indiana University (I.U.).

Petitioner and intervenor lived together for 7 of the next 9

years.   In 1994 he began working for United States Steel Corp.

(U.S. Steel) at its mill in Gary, Indiana.    As of trial he

continued to work for U.S. Steel as an ironworker, specifically

as a safety representative.

     Intervenor graduated from I.U. with dual majors in business

and computer science.    In 2000 she began working for Small

Business Transportation, Inc. (SBT).    Intervenor quickly moved

into sales and was a full-time sales representative during the 2
                               - 4 -

years in issue.   SBT is an independent third-party logistics

service provider whose principal business is buying cargo space

in bulk from regional, national, and international transportation

carriers and reselling the space to small and medium-sized

businesses that ship goods infrequently or in limited quantities.

     Petitioner and intervenor married on October 6, 2001, in

Indiana.   The marriage quickly experienced problems and

ultimately was short lived.   Intervenor left the marital home in

Indiana and moved with her furniture to Florida in May 2002.

Petitioner filed for divorce, but the couple reconciled; and

intervenor moved back with him in September 2002.    The

reconciliation did not last, and petitioner moved out for good in

January or February 2004.   Intervenor filed for a no-fault

divorce, which petitioner did not contest.    After Indiana’s

statutory 6-month waiting period had passed, the divorce became

final in August or September 2004.     Petitioner and intervenor had

no children.

     During the first 6 months of their marriage they tried to

maintain a joint checking account, but disputes ensued; and for

the rest of the marriage they maintained separate checking and

savings accounts at separate banks.    They had their paychecks

deposited directly into their separate accounts.    They also

maintained separate credit cards and independently paid their own

credit card bills.
                                - 5 -

     From an inheritance he had received about 15 or 20 years

earlier from his grandmother petitioner provided either $70,000

or $100,000 to purchase the lot and to begin construction on

their home.   He also used the proceeds from a bank construction

loan to complete the construction.      Petitioner built most of the

home himself.   Intervenor contributed about $25,000 toward

furniture.    The couple finished the basement and added a deck to

the back of the house.    The record does not clarify petitioner’s

and intervenor’s testimonial disagreement as to whether

intervenor paid all the monthly mortgage payments of $1,301 or

they evenly divided the monthly payments.

     They ate out for many of their meals, and, depending on the

timing of their paydays, one or the other would pay the check.

Similarly, they shopped and paid for groceries separately.

     In 2003 petitioner leased and made the payments of $400 a

month on a Dodge Ram truck worth $35,000.     Petitioner also

financed the purchase of a custom Titan motorcycle worth $28,000.

Intervenor helped on the downpayment, but petitioner made the

monthly payments.   Additionally, petitioner financed a four-wheel

ATV worth $10,000 on which intervenor helped with the monthly

payments.    Petitioner paid for the insurance on all of his

vehicles.    Intervenor similarly leased, made the monthly lease

payments on, and paid for the insurance on a vehicle which she

used for her work with SBT and for her own recreation vehicle.
                                - 6 -

     For the years in issue petitioner received Forms W-2, Wage

and Tax Statement, from U.S. Steel reporting $47,277 and $51,999

in wages for 2002 and 2003, respectively.

     Intervenor, on the other hand, received distinct Forms W-2

and Forms 1099-MISC, Miscellaneous Income, from SBT reporting

wages of $25,117 and $35,526 for 2002 and 2003, respectively, and

independent contractor payments to her of $50,831 and $65,939 for

2002 and 2003, respectively.    SBT’s purpose in issuing separate

forms was to make it easier for intervenor to report her business

expenses related to her sales activity.   During a subsequent IRS

examination the revenue agent considered the issue of

intervenor’s independent contractor versus employee status but

decided not to pursue the matter because “the tax effect was not

substantial.”   In 2003 intervenor also started from her home her

own transportation logistics company called Maximum Logistics.

     Petitioner had no involvement in intervenor’s businesses.

He did attend one SBT-related business trip with her to Las

Vegas.   Except for an SBT-sponsored social dinner on the first

evening, petitioner did not attend any of the business meetings

or company functions.   He met some friends and spent the days

with them or gambled or relaxed by the pool while intervenor was

conducting business.    SBT did not require petitioner to attend

the business trip, and petitioner paid for his own airplane

ticket and meals.
                               - 7 -

     Despite the separations and the marital difficulties, the

couple filed joint Federal income tax returns for 2002 and 2003.

At the suggestion of a relative of intervenor they went to Doris

Tax Service in Kouts, Indiana, for help in preparing their

returns for both years.   The tax preparer worked in an office

converted from her garage.

     We take judicial notice that on November 14, 2008, the U.S.

District Court for the Northern District of Indiana in United

States v. Stowers, docket No. 07-CR-00173 sentenced Doris Stowers

of Doris Tax Service in Kouts, Indiana, to imprisonment for up to

24 months for one count of “assisting in the preparation of a

false United States individual income tax return in violation of

Title 26, United States Code, Section 7206(2).”   The indictment

shows that for years 2002 and 2003 (the years at issue here) Ms.

Stowers willfully advised clients to claim false deductions on

their Federal income tax returns for charitable contributions,

educational credits and expenses, medical expenses, miscellaneous

expenses, and job expenses.

     In regard to their returns for 2002 and 2003 intervenor and

petitioner both attended the annual meetings with the tax

preparer, but each met separately with the preparer and presented

his or her own forms and expense receipts while the other sat on

a couch nearby reading magazines.   Petitioner spent about 10 to

15 minutes each year with the preparer while intervenor annually
                                - 8 -

spent about an hour.   For 2003 they also brought petitioner’s

mother, who conversed with petitioner while intervenor discussed

her expenses with the preparer.

     Intervenor deducted a total of $34,408 and $48,781 in

business expenses on Schedules C, Profit or Loss From Business,

for 2002 and 2003, respectively, pertaining to her business

activities.   The categories of expenses that made up these

amounts were car and truck expenses, meals and entertainment,

repairs and maintenance, travel, and other business expenses.

     Additionally, in both years their joint Federal income tax

returns reflected deductions on Schedule A, Itemized Deductions,

for State and local income taxes, real estate taxes, mortgage

interest, noncash and cash charitable contributions, and

miscellaneous expenses.

     The tax preparer electronically filed the couple’s returns

and arranged for direct deposit of the refunds into intervenor’s

personal bank account.    The refund for 2002 was $1,064, and the

refund for 2003 was $1,072.

     In May 2005 after the couple had divorced, the IRS selected

their joint 2002 and 2003 Federal income tax returns for audit.

Petitioner and intervenor attended the audits separately.

     The revenue agent made disallowances to three categories of

deductions on the 2002 and 2003 returns.   The first category was

intervenor’s business expenses.   At the audit intevenor was able
                                - 9 -

to produce only a few receipts for her 2002 business expenses and

none for 2003.   Respondent disallowed $19,153 or 56 percent of

intervenor’s business expense deductions for 2002.   Because

intervenor lacked documentation for her business expense

deductions for 2003, the revenue agent looked to 2002 to

determine an estimate.   The business expenses that the revenue

agent allowed for 2002 amounted to 30 percent of intervenor’s

2002 total business receipts.   As a result the revenue agent

allowed the same 30 percent for 2003, resulting in a disallowance

of $28,999 or 59 percent of intervenor’s 2003 business expense

deductions.

     The second set of disallowances was to the noncash and cash

charitable contributions.   With regard to the noncash charitable

contributions intervenor had donated items to Goodwill.

Intervenor deducted $4,537 and $3,267 in noncash charitable

contributions for 2002 and 2003.   On the basis of intervenor’s

substantiation respondent disallowed $603 and $777 for 2002 and

2003, respectively.

     Regarding the cash charitable contributions, for 2002

respondent allowed only $10 of the $6,585 deduction, and for 2003

respondent allowed only $50 of the $7,585 deduction.   The

record’s only discussion of the cash contributions was the

revenue agent’s adjustment report, which stated that for
                               - 10 -

contributions “the amounts claimed on the return were overstated

and have been allowed as adequately verified.”

     Third, the revenue agent disallowed miscellaneous itemized

deductions totaling $4,350 for 2002 and $8,068 for 2003.    The

record does not identify the expenses for which these disallowed

deductions were claimed.    However, none of the amounts that

petitioner claimed as miscellaneous itemized deductions for union

dues and specialized work clothing was disallowed.

     Intervenor conceded the examination changes that the revenue

agent proposed and agreed to an immediate assessment of the

Federal income tax deficiencies of $10,455 and $14,700 for 2002

and 2003, respectively.    Respondent therefore did not issue her a

notice of deficiency.

     Conversely, petitioner contested the examination changes.

After the audit petitioner filed a Form 8857, Request for

Innocent Spouse Relief, dated November 3, 2005, seeking relief

from joint and several liability for 2002 and 2003 under section

6015(c).

     The IRS sent a notice of deficiency dated January 11, 2006,

to petitioner determining the above-mentioned income tax

deficiencies of $10,455 and $14,700 for 2002 and 2003,

respectively, arising from the same disallowances that the

revenue agent proposed.    Petitioner did not petition the Court
                               - 11 -

for a redetermination of the deficiencies; consequently,

respondent assessed them.

     On December 4, 2006, after waiting 13 months and still not

receiving a response from the IRS to his application for innocent

spouse relief, petitioner filed a stand-alone petition with this

Court for relief from joint and several liability under section

6015(c).   As noted above petitioner also included requests in the

petition for abatement of interest for 2002 and 2003 under

section 6404(e).   Respondent notified intervenor of petitioner’s

requests for relief, and intervenor filed a notice of

intervention on June 15, 2007.

     The Court set a trial date for the trial session commencing

February 28, 2008, in Chicago, Illinois.    In the interim,

petitioner and his attorney discussed the request for relief with

respondent.   Intervenor similarly engaged in correspondence and

telephone conversations with respondent indicating that she

opposed relief.    On January 9, 2008, about 7 weeks before trial,

respondent entered into a settlement agreement with petitioner in

the form of a brief stipulation of settled issues conceding that

“no income tax is due from petitioner after application of

Internal Revenue Code [section] 6015(c).”

     When the case was called from the calendar, respondent and

petitioner’s attorney appeared, as did intervenor.    However, on

advice of his attorney petitioner did not appear.    The Court
                               - 12 -

began the trial receiving intervenor’s testimony and permitting

cross-examination.

     The Court continued the trial the next day to allow

petitioner to be heard; but because the mother of petitioner’s

attorney died overnight, the attorney could not appear.    The

Court set the case for further trial via video conference at a

special session on May 28, 2008, commencing at 10 a.m. eastern

time in the electronic courtroom connected to the Tax Court

building in Washington, D.C.

     When the case was called at 10 a.m. on May 28, 2008,

respondent’s counsel, petitioner, and his attorney appeared via

the live video conference from Chicago; however, intervenor did

not appear.   The Court heard petitioner’s testimony and, since

intervenor did not appear, closed the record.   Intervenor

appeared later at the video conferencing site in Chicago claiming

that she had erroneously thought that the trial was to begin at

10 a.m. central time.   Intervenor did not move to reopen the

record.

     As noted above respondent then moved to dismiss petitioner’s

section 6404(e) interest abatement requests for 2002 and 2003 for

lack of jurisdiction.   Petitioner replied but did not oppose the

motion because of the stipulation granting relief.   The Court

took the motion under advisement.
                               - 13 -

                               OPINION

I.    Jurisdiction

       Usually our jurisdiction in an innocent spouse case is

founded on a notice of determination denying a requesting

spouse’s application for relief.    Sec. 6015(e)(1)(A)(i)(I).    In

this case, even though petitioner never received a notice of

determination we have jurisdiction under section

6015(e)(1)(A)(i)(II) because petitioner filed his petition more

than 6 months after applying to the IRS for section 6015 relief.

II.    Burden of Proof

       The spouse requesting relief normally bears the burden of

proof in section 6015 cases.    Rule 142(a); Alt v. Commissioner,

119 T.C. 306, 311 (2002), affd. 101 Fed. Appx. 34 (6th Cir.

2004).    However, section 6015(c) specifically provides that the

Secretary bears the burden of proving that a spouse electing

relief had actual knowledge at the time of signing the return of

any item giving rise to the deficiency in joint tax.    King v.

Commissioner, 116 T.C. 198, 204 (2001); sec. 1.6015-3(c)(2),

Income Tax Regs.

       At both parts of the trial respondent conducted minimal

cross-examination and presented no evidence to show that

petitioner had actual knowledge of the facts underlying the

disallowed deductions.    Petitioner disclaimed any actual
                               - 14 -

knowledge of the facts that caused those deductions to be

disallowed.

       Intervenor has stepped forward to oppose the section 6015

relief which respondent had stipulated.    In a similar section

6015(c) case where an intervenor appeared to oppose stipulated

relief we weighed the evidence by using the preponderance of the

evidence standard.    See Stergios v. Commissioner, T.C. Memo.

2009-15.    Similarly, we will inquire whether actual knowledge has

been established by a preponderance of the evidence.

III.    Standard of Review

       Intervenor was not a party to the stipulation.   Furthermore,

section 6015(e)(4) provides the nonelecting spouse a right to be

heard in judicial proceedings.    Corson v. Commissioner, 114 T.C.

354, 365 (2000).    Additionally, “we have always applied a de novo

scope and standard of review in determining whether relief is

warranted under subsections (b) and (c) of section 6015.”     Porter

v. Commissioner, 132 T.C. __, __ (2009) (slip op. at 11).    For

the foregoing reasons we will review the record de novo.

IV.    Overview of Statutory Relief From Joint and Several
       Liability

       When a husband and wife file a joint return their liability

is normally joint and several with respect to any tax they show

on the return and to any tax the Commissioner finds to be owing.

Sec. 6013(d)(3).    However, section 6015 provides three avenues of

relief from joint and several liability:    (1) Section 6015(b)
                              - 15 -

permits relief if the requesting spouse establishes that in

signing the return he “did not know, and had no reason to know”

of the items that caused the understatement of tax; (2) section

6015(c) allows a separated or divorced spouse to request an

allocation of liability if the requesting spouse did not have

“actual knowledge” of the items giving rise to the understatement

of tax; and (3) section 6015(f) allows the IRS or the Court to

confer equitable relief depending on the particular facts and

circumstances but only in situations where relief under section

6015(b) and (c) is not available.   See King v. Commissioner, 115

T.C. 118, 121 (2000).

V.   Two Prerequisites for Relief Under Section 6015(c)

      Section 6015(c) is the avenue of relief that petitioner

chose and as discussed below is the one that best fits his

situation.   Under section 6015(c) the requesting spouse elects to

be treated as if he had filed a separate return, thereby limiting

his tax liability to that portion of the deficiency properly

allocable to him.   Rowe v. Commissioner, T.C. Memo. 2001-325.

      To be eligible for relief under section 6015(c) the electing

spouse must satisfy the following two pertinent conditions as of

the time of the election.   First, he must no longer be married

to, must be legally separated from, or must have lived for the

entirety of the preceding 12-month period in a different

household from the individual with whom he filed the joint
                                - 16 -

return.   Sec. 6015(c)(3)(A).    Second, he must have made the

election no later than 2 years after the date on which the

collection activity began.     Sec. 6015(c)(3)(B).

      Petitioner satisfies these two conditions.      The divorce was

finalized in August or September 2004.       Thus he was no longer

married to intervenor on November 3, 2005, the date on which he

filed Form 8857 applying for relief.     Likewise, respondent had

not commenced collection activity by November 3, 2005, the date

when petitioner had applied for relief.       Consequently,

petitioner’s election was timely, and he has satisfied those two

pertinent conditions.

VI.   Applicable Law

      Section 6015(c) permits an individual to elect to limit the

liability arising from a joint Federal income tax deficiency to

the portion of the deficiency that is properly allocable to the

electing individual under section 6015(d).       Estate of Capehart v.

Commissioner, 125 T.C. 211, 214 (2005); Barnes v. Commissioner,

T.C. Memo. 2004-266; sec. 1.6015-3(a), Income Tax Regs.       However,

the relief is not available to the extent “the Secretary

demonstrates that an individual making an election under this

subsection had actual knowledge, at the time such individual

signed the return, of any item giving rise to a deficiency (or

portion thereof)”.     Sec. 6015(c)(3)(C).
                                - 17 -

       We interpret the actual knowledge requirement of section

6015(c) at issue here more narrowly than the “reason to know”

standard of section 6015(b) or (f).      See Porter v. Commissioner,

supra at __ (slip op. at 14-15) (discussing the reason to know

standard).    A Senate committee report accompanying the 1998

enactment of section 6015 highlights the distinction, stating

that “actual knowledge must be established by the evidence and

shall not be inferred based on indications that the electing

spouse had a reason to know.”    See S. Rept. 105-174, at 59 (1998)

1998-3 C.B. 537, 595.

       Our jurisprudence holds that the requesting spouse must have

more than mere “knowledge that the [improper] deduction appears

on the return”.    King v. Commissioner, 116 T.C. at 205.   Instead

the requesting spouse must have “actual knowledge of the factual

circumstances which made the item unallowable as a deduction.”

Id. at 204; sec. 1.6015-3(c)(2)(i)(B)(1), Income Tax Regs. (“In

the case of an erroneous deduction or credit, knowledge of the

item means knowledge of the facts that made the item not

allowable as a deduction or credit.”).

VII.    Application of the Law to the Facts

       Petitioner contends he is entitled to full relief from the

income tax deficiencies for 2002 and 2003 because all of the

disallowed deductions are allocable to intervenor.     We agree.
                              - 18 -

     Intervenor had a college education with dual majors, and she

has a successful career in business.    She received a portion of

her earnings as wages and the remainder as payments to her as an

independent contractor.   This arrangement allowed her to claim a

portion of her business expenses on Schedule C rather than

Schedule A.   Intervenor found the tax preparer.   She spent a

significantly greater amount of time with the preparer.

Importantly, the refunds for 2002 and 2003 were deposited

directly into intervenor’s separate bank account.

     Intervenor’s business expenses were overstated.    When asked

at trial about the disallowances, intervenor acknowledged that

the tax preparer had provided misleading advice.    Intervenor also

acknowledged that she had been waiting for the “shoe to fall”

because she had heard that other clients of Doris Tax Service had

also received letters from the IRS.    Further, when the revenue

agent proposed the adjustments, intervenor quickly acquiesced.

     Intervenor’s arguments miss the main point.    Under section

6015(c) the question is whether petitioner had actual knowledge

of the facts underlying the disallowed deductions.    Instead

intervenor contends that petitioner must have known from loan

applications, from the annual sessions with the tax preparer, and

from reviewing the returns before signing them how much income

intervenor earned.   The deficiencies did not result from omitted

income but from disallowed deductions.
                              - 19 -

     Intervenor’s other arguments are similarly misplaced.    She

contends that petitioner’s lifestyle benefited from her higher

earnings.   She emphasizes that petitioner is also smart, and she

contends that by signing the joint returns petitioner knowingly

and freely accepted joint and several liability and accordingly,

in the interests of justice and fairness, should live up to his

responsibilities.   These contentions are not probative of actual

knowledge for purposes of section 6015(c)(3)(C).

     At trial petitioner’s testimony was credible,

straightforward, and without guile.    Petitioner did not have a

level of financial acumen comparable to intervenor’s.    He worked

in blue collar jobs, and his formal education ended after high

school.

     Petitioner from the outset vehemently denied that at the

time of signing the returns he had knowledge of the facts that

resulted in respondent’s disallowance of deductions that

intervenor had claimed.   He incurred the expense of hiring an

attorney to contest the disallowance whereas intervenor did not

hire a lawyer.   Moreover, the revenue agent did not adjust

petitioner’s work expenses and did not attribute any of the

disallowance of expenses to petitioner.    Likewise, respondent in

preparation of this case for trial reviewed the evidence and

stipulated that petitioner was entitled to full relief.
                               - 20 -

     We now address in turn the three specific sets of disallowed

deductions.

     A.   Disallowed Schedule C Business Expenses

     We find credible petitioner’s characterization of his and

intervenor’s financial arrangements.    Petitioner was busy at his

job as an ironworker while also building the house.    He did not

participate in intervenor’s business, did not see her bank

account statements, did not sign her checks, and did not review

her records.    Petitioner and intervenor primarily financed, made

the monthly payments on, and insured their own vehicles

separately.    Their marriage was rocky and short lived.    We

believe intervenor was not likely to have divulged the details of

her business, nor is it probable that petitioner would have had

much interest in the specifics.

     As stated in King v. Commissioner, 116 T.C. at 204, the

inquiry under section 6015(c) is whether petitioner “had actual

knowledge of the factual circumstances which made the item

unallowable as a deduction.”    No evidence establishes that

petitioner had actual knowledge of the facts causing respondent

to disallow intervenor’s business expense deductions.      As a

result petitioner is entitled to relief from joint and several

liability with respect to intervenor’s disallowed business

expense deductions.
                               - 21 -

     B.   Disallowed Deductions for Contributions

           1.   Noncash Contributions

     A similar result applies with respect to the noncash

charitable contributions.   Respondent disallowed $603 and $777 of

the $4,537 and $3,267 total deductions that intervenor claimed

for noncash charitable contributions in 2002 and 2003,

respectively.

     Other than his general awareness that intervenor donated

items to Goodwill, we believe petitioner did not have precise

information regarding the circumstances of intervenor’s

deductions or the specifics of her valuations or the adequacy of

her substantiation.   We find that petitioner lacked actual

knowledge respecting the disallowed noncash charitable

contribution deductions and is entitled to section 6015(c) relief

with regard to the portion of the deficiencies attributed to him.

           2.   Cash Contributions

     Respondent allowed only $10 and $50 of the $6,585 and $7,585

itemized deductions for cash charitable contributions for 2002

and 2003, respectively.   The revenue agent’s adjustment report

stated that the contributions “claimed on the return were

overstated and have been allowed as adequately verified.”     No

evidence establishes petitioner’s actual knowledge with respect

to these items.   We believe petitioner’s statement that

charitable contributions were intervenor’s responsibility.     He is
                              - 22 -

entitled to innocent spouse relief with respect to the disallowed

cash charitable contribution deductions.

     C.   Disallowance of Additional Miscellaneous Itemized
          Deductions

     The revenue agent disallowed $4,350 and $8,068 for 2002 and

2003, respectively, of the miscellaneous itemized deductions.

The revenue agent did not adjust petitioner’s separate

miscellaneous itemized deductions of $1,104 and $1,144 for 2002

and 2003, respectively, pertaining to union dues and specialized

work clothing.   Although intervenor asserted in passing that at

least some of the disallowed deductions were for petitioner’s

schooling, she did not corroborate her statement; and petitioner

credibly denied it.   Moreover, the revenue agent’s examination

report did not mention schooling or indicate that any of the

disallowed miscellaneous expenses were attributable to

petitioner.   Similarly, respondent stipulated that petitioner was

not responsible for any portion of the unpaid liability.

     In the end the lack of any evidence establishing

petitioner’s actual knowledge of the facts which made the

miscellaneous itemized deductions unallowable is decisive.

Consequently, petitioner is entitled to innocent spouse relief

with respect to them.
                              - 23 -

VIII.   Respondent’s Motion To Dismiss Petitioner’s Interest
        Abatement Request

     This Court has jurisdiction to review a section 6404(e)

interest abatement request only when the Commissioner has mailed

a final determination not to abate interest.     Bourekis v.

Commissioner, 110 T.C. 20, 26 (1998); see also Rule 280(b).

Because petitioner did not request an abatement of interest from

respondent and respondent did not issue a determination denying

an abatement request, we lack jurisdiction to review the matter.

We note that petitioner’s request for abatement is moot because

of our grant of section 6015(c) relief.   Accordingly, we will

grant respondent’s motion to dismiss petitioner’s section 6404(e)

interest abatement request for lack of jurisdiction.

     To reflect our disposition of the issues,


                                       An appropriate order will be

                                  issued granting respondent’s

                                  motion, and decision will be

                                  entered for petitioner.
