T.C. Memo. 2006-182
UNITED STATES TAX COURT
ROXANNE M. TOPPI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6808-05. Filed August 29, 2006.
Roxanne M. Toppi, pro se.
Jason Kuratnick, for respondent.
MEMORANDUM OPINION
WELLS, Judge: Petitioner seeks review of respondent’s
determination denying her request for relief pursuant to section
6015(f) regarding taxable years 1995 through 2001. The threshold
issue we must decide is whether the Court has jurisdiction over
the instant case.
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Background
Some of the facts and certain exhibits have been stipulated.
The parties’ stipulations of fact are incorporated in this
Opinion by reference. At the time of filing the petition,
petitioner resided in Franklinville, New Jersey.
Petitioner and David J. Toppi (Mr. Toppi) were married on
May 24, 1986, and divorced on June 11, 2002. Except for 5 years
following the birth of their son, petitioner worked as a
receptionist for several different employers while Mr. Toppi
tried to establish a practice as a chiropractor. Petitioner was
not involved with Mr. Toppi’s chiropractic practice. During 1994
or 1995, when petitioner’s son was 5 years old, Mr. Toppi
approached petitioner and asked her to return to work because his
“business was in trouble.”
Petitioner and Mr. Toppi’s mail was sent to their home
address in Franklinville, N.J. Petitioner regularly, but not
always, opened and read the mail. At approximately the same time
that Mr. Toppi asked petitioner to return to work, petitioner
discovered that Mr. Toppi had failed to pay numerous household
bills. Petitioner and Mr. Toppi opened a joint checking account
from which petitioner began to pay household bills. Petitioner
continued to pay household bills from the joint checking account
until she and Mr. Toppi divorced.
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Petitioner and Mr. Toppi’s tax difficulties began around the
time petitioner returned to work. On several occasions Mr. Toppi
told petitioner that they should file for an extension to file
their joint tax return because he did not have enough money to
pay the taxes. Petitioner and Mr. Toppi requested an extension
from April 15 until August 15, 1995 to file their 1994 tax
return. On August 21, 1995, respondent received petitioner and
Mr. Toppi’s joint 1994 income tax return reporting a tax
liability in the amount of $8,515 and a withholding credit in the
amount of $598. In order to satisfy their 1994 tax liability
petitioner and Mr. Toppi made monthly payments from June 5, 1996,
through March 6, 1998. The final payment on March 6, 1998,
satisfied petitioner and Mr. Toppi’s tax liability for 1994
including additions to tax and statutory interest.
On April 15, 1996, respondent received petitioner and Mr.
Toppi’s joint 1995 tax return reporting a tax liability in the
amount of $17,117 and a withholding credit in the amount of
$1,332. In order to satisfy their 1995 tax liability, petitioner
and Mr. Toppi made monthly payments from March 6, 1998, through
July 14, 2003. The final payment on July 14, 2003, satisfied all
of petitioner and Mr. Toppi’s tax liability for 1995 including
additions to tax and statutory interest.
Petitioner and Mr. Toppi requested an extension from April
15 until August 15, 1997, to file their joint 1996 tax return
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and subsequently requested another extension to file until
October 15, 1997. On October 20, 1997, respondent received
petitioner and Mr. Toppi’s joint 1996 tax return reporting a tax
liability of $15,813 and a withholding credit in the amount of
$1,253. The withholding credit was attributable to petitioner.
On June 28, 1999, respondent sent petitioner and Mr. Toppi a
Notice of Intent to Levy because they had defaulted on their
installment agreement for taxable year 1996. Petitioner and
Mr. Toppi’s 1996 tax liability, including additions to tax and
statutory interest, was fully satisfied by February 14, 2006.
The only other payment attributable to petitioner was an offset
of a $400 overpayment from petitioner’s 2002 taxable year.
Petitioner and Mr. Toppi requested an extension from
April 15 until August 15, 1998, to file their joint 1997 tax
return. Despite receiving an extension, petitioner and Mr. Toppi
filed their return 1 year later on July 30, 1999, reporting a tax
liability in the amount of $10,200 and a withholding credit in
the amount of $1,045. The withholding credit was attributable to
petitioner. No other payments have been made on petitioner and
Mr. Toppi’s 1997 tax liability except for one payment of $600
made by Mr. Toppi.
On August 2, 1999, petitioner and Mr. Toppi untimely filed
their joint 1998 tax return reporting a tax liability in the
amount of $8,513.29 and withholding credit in the amount of
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$2,050.03, of which $389 was attributable to petitioner.
Petitioner and Mr. Toppi have not made any further payments on
their 1998 tax liability.
On October 22, 2000, petitioner and Mr. Toppi untimely filed
their joint 1999 tax return reporting a tax liability in the
amount of $7,437.52 and a withholding credit in the amount of
$4,904.49, of which $1,884 was attributable to petitioner.
Petitioner and Mr. Toppi have not made any further payments
against their 1999 tax liabilities.
On August 3, 2001, petitioner and Mr. Toppi signed a Form
900, Tax Collection Waiver, extending the period of limitations
for collection of their 1996, 1997, 1998, and 1999 tax
liabilities. On June 25, 2004, respondent received petitioner’s
Form 8857, Request for Innocent Spouse Relief, and Form 12510,
Questionnaire for Requesting Spouse, for tax years 1995 through
2001.1 On December 8, 2004, respondent’s Appeals officer sent
petitioner a letter requesting any additional information that
petitioner wanted respondent to consider in determining whether
petitioner was entitled to section 6015(f) relief for the years
in issue. On January 27, 2005, respondent’s Appeals Office sent
petitioner a Notice of Determination denying petitioner’s request
1
The record does not demonstrate that petitioner and Mr.
Toppi have any tax liabilities for 2000 and 2001. We do not need
to address this because, for reasons explained below, we hold
that we do not have jurisdiction over the instant case.
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for relief pursuant to section 6015(f) for taxable years 1995
through 2001. Petitioner timely petitioned this Court.
Discussion
Respondent contends that we do not have jurisdiction over
the instant case. In Ewing v. Commissioner, 118 T.C. 494 (2002),
revd. 439 F.3d 1009 (9th Cir. 2006), we held that section 6015(e)
gave us jurisdiction to review section 6015(f) petitions for
relief where the Commissioner had not asserted a deficiency. The
Ninth Circuit Court of Appeals reversed our decision in Ewing,
holding that the Tax Court lacks jurisdiction to review section
6015(f) determinations in a case where the Commissioner has not
asserted deficiency. Commissioner v. Ewing, 439 F.3d 1009, 1012-
14 (9th Cir. 2006).2 We revisited the issue of our jurisdiction
in section 6015(f) cases where the Commissioner has not asserted
a deficiency and held, in Billings v. Commissioner, 127 T.C. ___
(2006), that we do not have jurisdiction to review section
6015(f) cases where the Commissioner has not asserted a
deficiency. Accordingly, we no longer follow our decision in
Ewing v. Commissioner, supra.
Because the Commissioner did not assert a deficiency in the
instant case, we are bound in the instant case to follow our
decision in Billings v. Commissioner, supra. We therefore hold
2
The Court of Appeals for the Eighth Circuit agreed with the
position of the Court of Appeals for the Ninth Circuit in Bartman
v. Commissioner, 446 F.3d 785 (8th Cir. 2006).
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that we lack jurisdiction over the instant case.3 Accordingly,
we do not reach the issue of whether petitioner is entitled to
relief pursuant to section 6015(f).
To reflect the foregoing,
An appropriate order of
dismissal for lack of jurisdiction
will be entered.
3
We note that Senators Feinstein and Kyl have recently
introduced S. 3523, 109th Cong., 2d Sess., sec. 1 (2006), that
would, if enacted, clarify that the Court has jurisdiction under
sec. 6015(e) to review all claims for relief under sec. 6015(f).
See also 152 Cong. Rec. S5962 (daily ed. June 15, 2006) (Senator
Feinstein stating: “this bill clarifies the statute’s original
intent”).