                        T.C. Memo. 2003-336



                      UNITED STATES TAX COURT



                 LOUISE SIRIANNI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12866-02.             Filed December 8, 2003.



     Louise Sirianni, pro se.

     Donna F. Herbert, for respondent.



                        MEMORANDUM OPINION


     GERBER, Judge:   Respondent moved for partial summary

judgment on the question of whether this Court has jurisdiction

to decide petitioner’s claim for relief under section 6015.1



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the period under
consideration, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
                               - 2 -

Petitioner initially petitioned this Court for review of

respondent’s determination not to abate interest under section

6404.   Petitioner then amended her pleading to include a claim

for relief from joint and several liability.   We must determine

whether we have jurisdiction to decide petitioner’s claim as to

joint and several liability.

Background

     Petitioner and her husband were investors in a TEFRA

partnership, Oak Co., during the years 1982 and 1984.   Oak Co.

was an investor in Bishop Energy Technology Associates, which was

an “Elektra Hemisphere” partnership.   This Court’s decision

concerning the partnership items for Bishop Energy Technology

Associates, et al., became final on April 3, 1999.   Pursuant to

section 6229(d)(2), respondent had 1 year from the date this

Court’s decision became final to assess any additional tax,

penalties or interest in connection with the partnership items or

affected items.   On March 27, 2000, which was within 1 year of

the date the Court’s decision became final, respondent assessed

the additional tax, penalties, and interest against the

Siriannis.

     Sometime after the March 27, 2000, assessment, petitioner

and her husband requested an abatement of interest on the

deficiency arising from the partnership.   On February 7, 2002,

respondent notified the Siriannis of respondent’s final
                                - 3 -

determination not to abate the interest.    The Siriannis timely

filed a petition for review of respondent’s determination under

the provisions of section 6404.

     The petition was filed in the names of Louise Sirianni and

Sam Sirianni (Mr. Sirianni); however, Mr. Sirianni did not sign

the petition.   Petitioner informed respondent that Mr. Sirianni

passed away on May 15, 2001.    Because a petition was not filed on

behalf of Mr. Sirianni or his estate, respondent moved to dismiss

Mr. Sirianni from the case.    We granted respondent’s motion.

     On or about October 25, 2002, petitioner submitted an

administrative request to respondent for relief from joint and

several liability under section 6015.    On February 6, 2003,

before she received a determination from respondent and less than

6 months after her administrative request, the petition was

amended to include a claim for relief under section 6015.    On

February 14, 2003, respondent denied petitioner’s administrative

request, and on March 25, 2003, petitioner filed an

administrative appeal with respondent’s Appeals Office.

Petitioner’s administrative appeal is currently pending

administrative review.

     On June 30, 2003, 8 months from the date that petitioner

filed her section 6015 administrative request, respondent moved

for partial summary judgment as to whether petitioner is entitled

to raise a claim for relief under section 6015 in this proceeding
                               - 4 -

brought under section 6404.   Respondent has not accused

petitioner of any inappropriate practice, such as delay, bad

faith, or dilatory motive in amending the petition.   Further,

respondent has not shown that petitioner’s amendment would

prejudice respondent in any respect.

Discussion

     Respondent moved for partial summary judgment on the

question of whether we have jurisdiction to decide petitioner’s

section 6015 claim for relief from joint and several liability.

Respondent argues that we lack jurisdiction over the section 6015

claim because petitioner’s right to petition under section 6015

had not matured.   Respondent further argues that a claim for

section 6015 relief does not fit within our statutory

jurisdiction to decide a section 6404 proceeding.

     Summary judgment is appropriate if there are no genuine

issues as to any material facts and a decision may be rendered as

a matter of law, whereas a partial summary adjudication may be

made which does not dispose of all the issues in the case.   Rule

121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).   There is no dispute

as to any material facts, and this controversy involves a

question that is ripe for partial summary judgment.   See Fla.

Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988).

     “[T]he Tax Court is a court of limited jurisdiction, and we
                                - 5 -

may exercise our jurisdiction only to the extent authorized by

Congress.”    Naftel v. Commissioner, 85 T.C. 527, 529 (1985).

“The question of the Court’s jurisdiction is fundamental and must

be addressed when raised by a party or on the Court’s own

motion.”    Id. at 530.

     Our jurisdiction to review a claim for relief from joint and

several liability is found in section 6015(e)(1)(A), which

provides:

         (A) In general.--In addition to any other remedy
     provided by law, the individual may petition the Tax
     Court (and the Tax Court shall have jurisdiction) to
     determine the appropriate relief available to the
     individual under this section if such petition is
     filed–-
             (i) at any time after the earlier of–-

                     (I) the date the Secretary mails, * * *
                notice of the Secretary’s final determination
                of relief available to the individual, or

                     (II) the date which is 6 months
                after the date such election is filed
                with the Secretary, and

               (ii) not later than the close of the 90th day
            after the date described in clause (i)(I).

     Petitioner amended her section 6404 petition to include a

claim under section 6015 at a time when she did not meet the

requirements to independently file a petition under section

6015(e).    Petitioner had not received a final determination from

respondent denying her claim, nor had 6 months passed from the

time petitioner had filed her election with respondent.    At this

point, petitioner’s circumstances were substantially similar to
                                 - 6 -

and would have been governed by the holding in Estate of Wenner

v. Commissioner, 116 T.C. 284 (2001).

     In Estate of Wenner, the taxpayer had sought to raise a

section 6015 claim in the context of a section 6404 proceeding.

The taxpayer, however, had not filed an administrative request

for relief under section 6015.    In Estate of Wenner, as in this

case, the Commissioner argued that we lacked jurisdiction with

regard to that claim.

     Respondent suggests that our decision in Estate of Wenner,

is wrong and has asked, in this case, that we reconsider our

holding and overrule it.   We need not reconsider our holding in

Estate of Wenner, because petitioner’s circumstances have changed

during the pendency of this case.

     Petitioner’s administrative appeal has now been pending for

more than 6 months without a final determination by respondent,

which satisfies section 6015(e)(1)(A)(i)(II).     Currently, she is

entitled to separately petition this Court under that section.

Due to the fact that petitioner may separately petition her

section 6015 claim, we have jurisdiction over that claim and may

hear it with her section 6404 claim.     Accordingly, there is no

basis or reason for our reconsideration of the holding in Estate

of Wenner.

     Petitioner’s section 6015 and section 6404 claims are

properly before this Court.   It would not be efficient or
                                 - 7 -

reasonable to cause petitioner the expense and inconvenience of

filing separate proceedings in this Court.       Nor would it be

efficient or reasonable to hold a separate trial for each of

petitioner’s claims.2   We hold that we have jurisdiction to

decide petitioner’s section 6015 claim, and that claim may be

heard in one proceeding with petitioner’s section 6404 claim.

     To reflect the foregoing,

                                         An appropriate order will be

                                 issued denying respondent’s motion

                                 for partial summary judgment.




     2
       Respondent admits that petitioner has the right to
petition this Court because the 6-month period provided for in
sec. 6015(e)(1)(A)(i)(II) has expired. However, respondent
argues that judicial economy would be best served by waiting to
see whether petitioner’s administrative appeal is denied. If the
appeal is denied, respondent suggests holding a stand-alone
proceeding under sec. 6015(e). It appears that respondent seeks
this roundabout approach as a means to provide this Court with
the opportunity to reconsider the holding in Estate of Wenner v.
Commissioner, 116 T.C. 284 (2001). Should respondent grant
petitioner’s administrative appeal of the denial of sec. 6015
relief, respondent will be in a position to concede that
petitioner is entitled to relief in this proceeding.
