T.C. Memo. 2007-219
UNITED STATES TAX COURT
RHONDA K. JUELL, a.k.a. RHONDA K. JUELL-PODLAK, Petitioner, AND
GLENN M. EVANS, Intervenor v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9631-06. Filed August 8, 2007.
Kelly W. Hoversten, for petitioner.
Glenn M. Evans, pro se.
Melissa J. Hedtke, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
SWIFT, Judge: Respondent determined deficiencies in
petitioner and intervenor’s Federal income taxes for 1987 through
1994 as follows:
- 2 -
Year Deficiency
1987 $7,993
1988 6,710
1989 5,993
1990 7,465
1991 8,253
1992 6,787
1993 7,326
1994 2,016
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue.
The issue for decision is whether petitioner Rhonda Juell is
entitled to relief from joint and several liability under section
6015(b), (c), or (f) with respect to the entire amount of each of
the above tax deficiencies determined by respondent. Intervenor
Glenn Evans (Glenn) objects to petitioner’s right to any relief
under section 6015.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
At the time the petition was filed, petitioner resided in
St. Cloud, Minnesota.
On October 10, 1987, Glenn and petitioner were married.
In 1988, petitioner received her teaching degree and ever
since has been employed as an elementary school teacher. In
1994, the last year in issue, petitioner received a master’s
degree in education.
- 3 -
During the marriage, Glenn maintained two separate checking
accounts and one separate savings account. Petitioner never had
access to Glenn’s separate bank accounts. Petitioner never
opened and never reviewed Glenn’s bank statements.
Petitioner has never received any training or instruction in
business or taxes. Over the years, petitioner has simply
deposited what remained, after expenses, of her approximate
$18,000 yearly salary into a checking account jointly maintained
by Glenn and petitioner.
During the years in issue, Glenn was a college graduate
employed as a high school principal and earned approximately
$42,000 annually.
During Glenn and petitioner’s marriage, Glenn handled all
significant financial matters, leaving some routine bills and
expenses to be paid by petitioner, which petitioner paid out of
the joint checking account. Glenn made all mortgage and life
insurance payments and the payments relating to his separate
investments out of his separate checking accounts.
In early 1990, through staff members at the school where
Glenn was a principal, Glenn learned of an investment opportunity
promoted by Walter J. Hoyt III that involved investing in cattle
breeding partnerships (the Hoyt partnerships).1
1
For a detailed description of the Hoyt partnerships see
Bulger v. Commissioner, T.C. Memo. 2005-147.
- 4 -
Generally, the Hoyt partnerships enabled investors to
receive partnership interests without making initial capital
contributions. Investors were required to allow the Hoyt
partnerships or related entities to prepare the investors’ tax
returns, on which returns large losses would be allocated to the
partners, thereby reducing the investors’ reported tax
liabilities to zero. Related tax refunds investors received
would be returned to the Hoyt partnerships to pay the investors’
capital contributions and related fees.
Glenn traveled to Oregon to inspect a Hoyt partnership
ranch. Glenn toured the ranch and met and spoke with individuals
affiliated with the Hoyt partnerships. Petitioner did not
accompany Glenn to the ranch.
Upon returning, Glenn explained to petitioner some aspects
of the Hoyt partnerships. Petitioner told Glenn that she did not
understand the investments and that she did not want to get
involved in the Hoyt partnerships.
Despite petitioner’s objection, Glenn invested in the Hoyt
partnerships. To overcome petitioner’s objection, Glenn assured
petitioner that the investments were to be treated as his
separate investments and his responsibility and that petitioner
need not have anything to do with them.
Glenn received documents and materials relating to the Hoyt
partnerships. Included in these materials were subscription
- 5 -
agreements relating to three series of Hoyt partnership units,
powers of attorney granting Walter J. Hoyt III authority over
partnership matters, and various partnership agreements. Glenn
signed the documents and instructed petitioner to sign the
documents. When petitioner objected, Glenn explained to
petitioner that, because they were married, her signature was
required in order for him to invest. Again, Glenn reassured
petitioner that she need not worry and that he would take full
responsibility.
Relying on Glenn’s representations, and without reading
them, petitioner signed the Hoyt partnership documents.
Petitioner never communicated with any Hoyt partnership
representatives, never attended any partnership-related meetings,
and never read any correspondence or promotional materials from
the Hoyt partnerships. Petitioner placed mail relating to the
Hoyt partnerships aside, unopened, for Glenn to deal with, as she
considered the Hoyt partnerships his investments.
All payments and contributions to the Hoyt partnerships were
made by Glenn from his separate bank accounts. Over the years,
Glenn wrote more than 20 checks exceeding $55,956 to the Hoyt
partnerships and related entities.
At no time did petitioner contribute any funds to the Hoyt
partnerships.
- 6 -
Glenn collected and gathered the necessary documents to
enable WJ Hoyt Sons Laguna Tax Service, a Hoyt partnership-
related entity, to prepare his and petitioner’s joint Federal
income tax returns.
On or about July 25, 1991, on behalf of Glenn and
petitioner, WJ Hoyt Sons Laguna Tax Service prepared and
submitted to respondent a Form 1045, Application for Tentative
Refund, for the years 1987, 1988, and 1989, on which a claimed
$143,854 net operating loss relating to the Hoyt partnerships was
carried back from 1990. For 1990 through 1993, the same Hoyt
partnership-related tax preparer prepared Glenn and petitioner’s
joint Federal income tax returns.
During the years in issue, claimed Hoyt partnership-related
losses dramatically reduced Glenn and petitioner’s reported joint
adjusted gross income (AGI), resulting in Glenn and petitioner’s
receiving tax refunds of Federal income taxes paid for 5 of the 8
years in issue, and significantly reducing Glenn and petitioner’s
reported tax liabilities for the other tax years.
The schedule below reflects, for each of the years in issue,
Glenn and petitioner’s reported AGI before claiming the Hoyt
partnership-related items and their reported AGI after claiming
the Hoyt-related items:
- 7 -
Glenn and Petitioner’s Glenn and Petitioner’s
Reported AGI Before Reported AGI After
Hoyt Partnership-Related Hoyt Partnership-Related
Year Claimed Tax Benefits Claimed Tax Benefits
1987 $51,210 0
1988 46,696 0
1989 51,435 0
1990 64,522 ($142,216)
1991 61,669 5,030
1992 69,530 29,639
1993 68,124 25,882
1994 86,523 76,368
When a tax refund was received, it was deposited by Glenn
into one of Glenn’s separate bank accounts, and Glenn would then,
pursuant to his commitment under the Hoyt partnership agreement,
write a check on one of his separate bank accounts to either a
Hoyt partnership or a Hoyt partnership-related entity for a
nearly identical amount.
Attached to the 1991, 1992, and 1993 joint Federal income
tax returns were material participation statements indicating
that Glenn and petitioner were co-owners of a cattle production
and sales business. Attached to the 1992 return was an affidavit
signed by Glenn and petitioner, stating that Glenn and petitioner
were “actively engaged” in the business of cattle ranching.
Petitioner, however, was not in any way involved in the
preparation of the above joint Federal income tax returns. Glenn
- 8 -
told petitioner, and petitioner believed, that because they were
married they had to file joint tax returns. Glenn further told
petitioner that, because he was involved in the Hoyt
partnerships, she was required to sign the documents attached to
the returns relating to the Hoyt partnerships. Relying on Glenn,
petitioner signed the tax returns and attached materials, despite
having not read the materials. Petitioner did not read the
materials attached to the return because she felt she did not
know enough to understand them.
Each year, petitioner objected to signing the tax returns
reflecting the tax benefits relating to the Hoyt partnerships,
and petitioner asked Glenn to get out of the Hoyt partnership
investments. Petitioner reluctantly signed the tax returns and
attached documents only after Glenn reassured petitioner that tax
professionals had prepared them and that she was required to
sign.
During the years in issue, petitioner’s standard of living
remained constant. There were no lavish expenditures of any kind
that benefited petitioner, and petitioner did not receive any
benefit from the tax refunds and the tax reductions based on the
Hoyt partnerships because the tax refunds were deposited into
Glenn’s separate accounts and then contributed by Glenn back to
the partnerships.
- 9 -
The credits and deductions relating to the Hoyt partnerships
claimed on Glenn and petitioner’s joint Federal income tax
returns for the years in issue were eventually disallowed by
respondent, resulting in the tax deficiencies determined by
respondent as set forth above. See supra p. 2.
In or about October 1997, Glenn and petitioner were
separated, and they were divorced in February of 2000.
During 2000, petitioner received her first correspondence
from respondent alerting her to the above tax deficiencies that
respondent had determined.
On August 13, 2001, petitioner acknowledged and entered into
a closing agreement with respondent with respect to the above tax
deficiencies relating to the Hoyt partnerships for 1987 through
1997.
On May 21, 2002, petitioner submitted to respondent a Form
8857, Request for Innocent Spouse Relief, under section 6015(b),
(c), and (f) with respect to the entire amount of each tax
deficiency for each year in issue.
On July 16, 2003, respondent issued a preliminary
determination letter denying petitioner’s request for innocent
spouse relief.
On February 17, 2006, respondent issued a notice of
determination denying petitioner’s request for innocent spouse
relief.
- 10 -
On May 22, 2006, petitioner timely filed a petition with
this Court for relief from joint and several liability with
regard to the entire amount of the above tax deficiencies
relating to the Hoyt partnership investments in which Glenn had
invested.
Shortly before trial, respondent agreed that petitioner
qualified for partial relief from joint liability under section
6015(c) for each year in issue, reducing the tax deficiency for
which petitioner is allegedly liable for each year by
approximately two-thirds.
Since her divorce in 2000, petitioner has timely filed
separate individual Federal income tax returns, and no tax
deficiencies for years subsequent to 1994 have been determined by
respondent against petitioner.
Petitioner has since remarried, and petitioner and her
current husband earn approximately $100,000 a year, of which
petitioner earns approximately $60,000.
OPINION
Generally, taxpayers filing joint Federal income tax returns
are jointly and severally liable for all taxes due. Sec.
6013(d)(3). However, relief from joint liability may be
available in circumstances described in section 6015(b), (c), and
(f).
- 11 -
Petitioner claims that she is entitled to additional relief
from joint liability under section 6015(b), (c), and (f), beyond
the two-thirds relief already granted by respondent.
A taxpayer spouse who meets certain qualifications may elect
relief under section 6015(b). Generally, to qualify for relief
under section 6015(b)(1), the electing spouse must establish
that:
(A) A joint return was filed;
(B) there is an understatement of tax on the return
which is attributable to the erroneous items of the
nonelecting spouse;
(C) in signing the return, the electing spouse did not
know, and had no reason to know, that there was such an
understatement;
(D) taking into account all the facts and
circumstances, it is inequitable to hold the electing spouse
liable for the deficiency in tax for the taxable year
attributable to the understatement; and
(E) a timely election has been made.
Respondent does not dispute that petitioner meets the
requirements of subparagraphs (A) and (E) of section 6015(b)(1),
but respondent contends that petitioner has not satisfied the
requirements of subparagraphs (B), (C), and (D).
Section 6015(b)(1)(B): Attributable to Nonelecting Spouse
When determining whether an erroneous item is attributable
to a nonelecting spouse, we look not only to how ownership is
- 12 -
nominally held between the spouses but also to each spouse’s
level of participation in the activity which gave rise to the
erroneous item.
Joint ownership, by itself, is not determinative of whether
the erroneous item is attributable to one or both spouses. See
Rowe v. Commissioner, T.C. Memo. 2001-325; Buchine v.
Commissioner, T.C. Memo. 1992-36, affd. 20 F.3d 173 (5th Cir.
1994). A key factor is whether and to what extent the electing
spouse voluntarily participated in the investment which gave rise
to the erroneous item.
Generally, an electing spouse who voluntarily agrees to
enter into an investment and who actively participates in it is
precluded from attributing the entire investment to the
nonelecting spouse. See Abelein v. Commissioner, T.C. Memo.
2004-274; Capehart v. Commissioner, T.C. Memo. 2004-268, affd.
204 Fed. Appx. 618 (9th Cir. 2006); Bartak v. Commissioner, T.C.
Memo. 2004-83, affd. 158 Fed. Appx. 43 (9th Cir. 2005); Ellison
v. Commissioner, T.C. Memo. 2004-57; Doyel v. Commissioner, T.C.
Memo. 2004-35.
However, if the electing spouse is not an active
participant, the electing spouse may qualify for relief even
though being named as a shareholder or partner. See McKnight v.
Commissioner, T.C. Memo. 2006-155 (in the context of section
- 13 -
6015(c) and (f)); Rowe v. Commissioner, supra; Buchine v.
Commissioner, supra.
In Bartak v. Commissioner, supra, Ellison v. Commissioner,
supra, and Doyel v. Commissioner, supra, the electing spouses
each agreed to invest in the investments which gave rise to the
erroneous items and did so jointly with their spouses by using
funds from joint bank accounts. Further, the electing spouses
considered the investments to be their own, as well as their
husbands’, and were denied relief because the erroneous items
were not entirely attributable to their husbands.
Similarly, in Abelein v. Commissioner, supra, and Capehart
v. Commissioner, supra, the electing spouses not only used funds
from joint accounts to invest, but also met and toured with
persons associated with the business activities, contacted them
on occasion, and received and read materials relating to them.
In contrast, in McKnight v. Commissioner, supra, Rowe v.
Commissioner, supra, and Buchine v. Commissioner, supra, because
they did not participate in the business activity, the electing
spouses were granted relief despite being named as shareholders or
partners. In Rowe the electing spouse did not make or participate
in any decision relating to the activity, did not sign any checks
relating to the activity, and was not otherwise involved in the
activity. In Buchine, the electing spouse’s name appeared as
shareholder and partner, but she had no knowledge of being named on
the Schedule K-1, and she only attended one promotional meeting.
- 14 -
In McKnight v. Commissioner, supra, erroneous items were
attributed entirely to the nonelecting spouse, even though the
electing spouse signed organizational documents relating to the
investment and was listed as a director. We noted that the
spouse signed the documents at her husband’s insistence, after
assurances from him that he was sole owner of the business and
without awareness on her part of the legal significance.
On the facts before us, petitioner more closely resembles
the spouses who were granted relief in Rowe v. Commissioner,
supra, and Buchine v. Commissioner, supra. Petitioner
participated in the Hoyt partnerships in name only. Petitioner
repeatedly objected to Glenn’s involvement in the Hoyt
partnerships. Petitioner never agreed to invest in the Hoyt
partnerships, and petitioner signed Hoyt documents solely because
of Glenn’s representations and insistence and without being aware
of the legal significance thereof.
At no time did petitioner invest any of her funds in the
Hoyt partnerships. Petitioner did not attend any meetings, make
any contact, or read any promotional materials. Glenn made all
payments to the Hoyt partnerships from his separate accounts,
accounts to which petitioner had no access. Mail relating to the
Hoyt partnerships was left unopened for Glenn.
Respondent argues that introductory language in the closing
agreement petitioner entered into with respondent constitutes an
admission by petitioner that she was a partner in and agreed to
- 15 -
the investment in the Hoyt partnerships. To the contrary, that
particular language simply associates the Hoyt partnerships with
the tax deficiencies and does not constitute an admission as to
the level of petitioner’s involvement in the Hoyt partnerships.
See Zaentz v. Commissioner, 90 T.C. 753, 762 (1988).
Because the understatements are attributable entirely to
Glenn, petitioner satisfies section 6015(b)(1)(B).
Section 6015(b)(1)(C): Know or Reason To Know2
A spouse seeking relief from joint liability under section
6015(b) must not have known or had reason to know at the time of
signing a joint tax return that there was an understatement of
tax on a return. Sec. 6015(b)(1)(C). In deduction cases, the
United States Court of Appeals for the Eighth Circuit has adopted
the standard set forth in Price v. Commissioner, 887 F.2d 959,
963-965 (9th Cir. 1989). See Erdahl v. Commissioner, 930 F.2d
585, 589 (8th Cir. 1991), revg. T.C. Memo. 1990-101.3
Under the Price standard, the Court inquires as to whether
“‘a reasonably prudent taxpayer under the circumstances of the
2
“The requirement in sec. 6015(b)(1)(C) * * * is virtually
identical to the same requirement of former sec. 6013(e)(1)(C);
therefore, cases interpreting former sec. 6013(e) remain
instructive to our analysis.” Doyel v. Commissioner, T.C. Memo.
2004-35.
3
Because an appeal in this case would lie in the U.S. Court
of Appeals for the Eighth Circuit, we follow Eighth Circuit law.
See Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d
985 (10th Cir. 1971).
- 16 -
spouse at the time of signing the return could be expected to
know that the tax liability stated was erroneous or that further
investigation was warranted.’” Id. at 590 (quoting Stevens v.
Commissioner, 872 F.2d 1499, 1505 (11th Cir. 1989), affg. T.C.
Memo. 1988-63).
Even if a spouse is not aware of sufficient facts to give
her reason to know of the substantial understatement, she
nevertheless may know enough facts to put her on notice that an
understatement exists. Price v. Commissioner, supra at 965. The
question to ask is whether “a reasonably prudent taxpayer in her
position [would] be led to question the legitimacy of the
deduction.” Guth v. Commissioner, 897 F.2d 441, 445 (9th Cir.
1990) (citing Price v. Commissioner, supra at 975) (emphasis
removed), affg. T.C. Memo. 1987-522).
A spouse electing relief may satisfy the duty to inquire by
questioning the deductions and receiving assurances as to their
legitimacy. Erdahl v. Commissioner, supra at 590 n.7. These
assurances may come from the electing spouse’s husband. See
Price v. Commissioner, supra at 966 (duty of inquiry satisfied
where spouse questioned husband about large deductions who
assured her that the returns were prepared by a C.P.A.); Foley v.
Commissioner, T.C. Memo. 1995-16 (spouse satisfied duty of
inquiry by asking husband about tax shelter deductions, hearing
that she should not worry because he invested in tax shelters and
- 17 -
because return preparer had signed return); Estate of Killian v.
Commissioner, T.C. Memo. 1987-365 (spouse took reasonable steps
to determine the accuracy of the return by questioning husband
about sham losses, who assured her that the losses were due to an
investment recommended by a C.P.A. who prepared the return).
The factors established in Price v. Commissioner, supra, as
to whether the electing spouse had reason to know or a duty to
inquire include the spouse’s level of education, the spouse’s
involvement in family financial affairs, the evasiveness or
deceit of the culpable spouse, and any unusual or lavish
expenditures inconsistent with the family’s ordinary standard of
living. Erdahl v. Commissioner, supra at 591 (quoting Guth v.
Commissioner, supra at 444).
On the facts before us, we find that petitioner did not know
and did not have reason to know of the understatements on the tax
returns when she signed them. Petitioner satisfied her duty of
inquiry by questioning her husband and receiving strong and
repeated assurances from him.
All four factors discussed in Price v. Commissioner, supra,
weigh in favor of granting petitioner relief. Petitioner had no
experience academically or practically regarding business, taxes,
or investments and has worked as an elementary school teacher.
Petitioner’s involvement in the family financial affairs was
limited to paying routine bills out of the joint account. Glenn
- 18 -
was deceptive in that he told petitioner she had to file joint
Federal income tax returns with him and that the Hoyt
partnerships would be his responsibility. Finally, there
occurred no unusual or lavish family expenditures that would have
notified petitioner of the understatement.
Respondent contends that the size of the deductions on the
tax returns was sufficient to instill in petitioner a duty to
inquire. Even if such a duty arose, petitioner satisfied the
duty of inquiry by confronting Glenn each year and questioning
the Hoyt partnership-related items.
Because petitioner did not know or have a reason to know
that the deductions were erroneous, and because she satisfied her
duty of inquiry, petitioner satisfies section 6015(b)(1)(C).
Section 6015(b)(1)(D): Inequity
Whether it would be inequitable to hold a spouse liable for
a tax deficiency is determined by “taking into account all the
facts and circumstances.” Sec. 6015(b)(1)(D).4 The two most
often cited factors to be considered are: (1) Whether there has
been a significant benefit to the spouse claiming relief, and
(2) whether the failure to report the correct tax liability on
4
“The requirement in sec. 6015(b)(1)(D) * * * is virtually
identical to the same requirement of former sec. 6013(e)(1)(D);
therefore cases interpreting former sec. 6013(e) remain
instructive to our analysis.” Doyel v. Commissioner, T.C. Memo.
2004-35.
- 19 -
the joint return results from concealment, overreaching, or any
other wrongdoing on the part of the other spouse. Alt v.
Commissioner, 119 T.C. 306, 314 (2002), affd. 101 Fed. Appx. 34
(6th Cir. 2004). We also consider factors utilized in
determining “inequity” in the context of section 6015(f).5
Normal support is not considered a significant benefit. Estate
of Krock v. Commissioner, 93 T.C. 672, 678 (1989). Where the
electing spouse’s standard of living remains constant,
significant benefit may still be found if the tax savings are
“immensely beneficial”. Jonson v. Commissioner, 118 T.C. 106,
119-120 (2002), affd. 353 F.3d 1181 (10th Cir. 2003).
Because, as stated previously, petitioner’s standard of
living remained constant throughout the years in issue and
because the claimed tax refunds and savings were not needed or
used to support petitioner but were returned to the Hoyt
partnerships by Glenn, petitioner received no benefit as a result
of the erroneously claimed Hoyt partnership-related tax benefits.
Respondent contends that petitioner could have received a
significant benefit from the refunds even though they were
reinvested and cites Capehart v. Commissioner, T.C. Memo. 2004-
5
Rev. Proc. 2000-15, sec. 4.03, 2000-1 C.B. 447, 448-449,
lists nonexclusive factors to be considered in determining
whether it is inequitable to hold the electing spouse liable for
all or part of a deficiency under sec. 6015(f).
- 20 -
268 (spouse benefited from receiving refund despite reinvestment
in Hoyt partnerships).
The determinative fact, however, is not that a refund was
received but who benefited from it. In particular, we have held
that, where a refund was used to benefit an electing spouse in a
manner beyond normal support or where an electing spouse chooses
to invest a refund in business activities, a significant benefit
was received. See Abelein v. Commissioner, T.C. Memo. 2004-274
(spouse and her husband reinvested portions of refund into a
business activity); Pierce v. Commissioner, T.C. Memo. 2003-188
(spouse used refund to contribute capital and lend funds to an
investment); French v. Commissioner, T.C. Memo. 1996-38 (spouse
used refund to jointly purchase several certificates of deposit
in large denominations); Schlosser v. Commissioner, T.C. Memo.
1992-233 (spouse used refund for investments and to pay off
debts), affd. without published opinion 2 F.3d 404 (11th Cir.
1993).
If, however, a tax refund is used only by a nonelecting
spouse for his or her own investment, the electing spouse would
not necessarily have received a significant benefit. See Hillman
v. Commissioner, T.C. Memo. 1993-151 (nonelecting spouse used
refund to buy himself a Porsche automobile and a Rolex watch and
to invest in a motion picture); Estate of Killian v.
Commissioner, T.C. Memo. 1987-365 (nonelecting spouse used refund
- 21 -
to pay off his personal loans and to invest in a limited
partnership).
Petitioner resembles the innocent spouses in Hillman and
Killian, in that the funds were not used to benefit her in any
way but were funneled into Glenn’s investments in the Hoyt
partnerships.
Because petitioner received little to no benefit from the
erroneously claimed Hoyt partnership-related tax benefits, we
find that this factor weighs heavily in favor of granting
petitioner relief.
The second prominent factor--namely, concealment or
wrongdoing by the nonrequesting spouse, also weighs in
petitioner’s favor. As stated, Glenn repeatedly told petitioner
that they were required to file joint Federal income tax returns,
that the Hoyt partnerships were his investments, and that he
would be responsible for them. This factor, combined with other
factors, demonstrates that it would be inequitable to hold
petitioner liable. We note that petitioner is divorced from
Glenn, that none of the erroneous deductions is attributable to
her, that she did not know and had no reason to know of the
substantial understatements, that she satisfied her duty of
inquiry, and that she has subsequently made a good faith effort
to comply with the tax laws.
- 22 -
The facts that weigh against granting relief, such as
petitioner’s lack of financial hardship, are insufficient to deny
petitioner relief. Petitioner satisfies section 6015(b)(1)(D).
Section 6015(c) and (f)
Because petitioner qualifies under section 6015(b) for
relief from joint liability with regard to 100 percent of the tax
deficiencies relating to the Hoyt partnership investments, we
need not address petitioner’s eligibility for relief under
subsections (c) and (f) of section 6015.
To reflect the foregoing,
Decision will be entered for
petitioner.