T.C. Summary Opinion 2009-67
UNITED STATES TAX COURT
SARAH MARQUEZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12917-05S. Filed May 7, 2009.
Sarah Marquez, pro se.
Stephen R. Doroghazi, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. Unless otherwise indicated, subsequent section references
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are to the Internal Revenue Code as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
The issue for decision is whether petitioner is entitled to
relief from joint and several liability under section 6015(f) for
2000.1
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the exhibits received into evidence
are incorporated herein by reference. When the petition was
filed, petitioner resided in Florida.
Petitioner married Neil Peiman (Mr. Peiman) in February
1999; the marriage produced one child. During their marriage
they operated or held interests in several entities: (1) 4G
Trading, Inc. (4G Trading), a day trading company, which was
operated by Mr. Peiman and another associate; (2) Star Millennium
Group, Inc. (Star Millennium), a real estate holding company, of
which petitioner and Mr. Peiman served as officers and directors;
(3) NLS Enterprises, Inc. (NLS), a holding company for
investments, of which petitioner and Mr. Peiman served as
officers; and (4) “IAG”, a regional Internet service provider,
owned by Mr. Peiman. Petitioner was also actively involved in
1
Petitioner’s former husband, Neil Peiman, was notified that
petitioner was seeking relief from joint and several liability
and that he had a right to intervene in the matter. He has not
exercised his right to intervene.
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the accounting functions of IAG, NLS, and Star Millennium, but
she was not actively involved in the accounting functions of 4G
Trading.
In June 1999 Mr. Peiman sold IAG for cash and stock of “One
Main”. Petitioner was not an owner of, officer of, or otherwise
involved with One Main before or after the takeover of IAG. The
sale proceeds Mr. Peiman received “went into an account by the
name of BT Alex Brown.” Petitioner did not have access to nor
was she a signatory on the BT Alex Brown account. She did not
know how much money Mr. Peiman held in the BT Alex Brown account.
Whenever petitioner told Mr. Peiman that she needed money, he
would “just write a check out of the BT Alex Brown account” and
deposit it into their joint account. She used the joint account
to pay their household expenses.
In May 2001 petitioner and Mr. Peiman separated. They filed
a joint Form 1040, U.S. Individual Income Tax Return, for 2000 in
September 2001 pursuant to extensions. A certified public
accountant (C.P.A.) prepared the Form 1040. They reported
petitioner’s wages of $11,000, interest income of $5,464,
ordinary dividends of $1,379, a loss of $13,403 from their three
S corporations (4G Trading, NLS, and Star Millennium),2 and a
capital gain of $537,593. The capital gain consisted of various
2
Petitioner provided the source information for the S
corporations’ returns to their C.P.A.
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gains and losses from sales of stock, including Mr. Peiman’s
liquidation of the One Main stock he received from the IAG
takeover as “the restrictions came off”, and $73,870 in cash
proceeds from the takeover of IAG that Mr. Peiman received in
2000 and reported as income under the installment method. The
Form 1040 reported a $101,739 tax liability and total payments of
$27,6833 for a $79,368 balance due.
Sometime in 2001 Mr. Peiman moved to Costa Rica. When
petitioner traveled to meet Mr. Peiman in Costa Rica, he greeted
her with divorce papers “the minute [she] stepped off the plane.”
Although petitioner and Mr. Peiman divorced in March 2003, they
filed a joint return for 2002, which was prepared by their C.P.A.
The C.P.A. also prepared a Form 1040X, Amended U.S. Individual
Income Tax Return, for 2000 that petitioner picked up from the
C.P.A. The 2000 Form 1040X made certain revisions to petitioner
and Mr. Peiman’s adjusted gross income, itemized deductions,
taxable income, and their tax liability on account of a net
operating loss carryback for 2002. In addition, the 2000 Form
1040X reported a tax liability of $98,146 and total payments
$84,1874 for a $13,959 balance due.
3
The payments consist of withholdings of $2,683 and an
amount “paid with request for extension to file” of $25,000.
4
The payments consist of withholdings of $2,683, an amount
“paid with request for extension to file” of $25,000, and an
amount of “tax paid with original return plus additional tax paid
(continued...)
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In December 2003 the Internal Revenue Service (IRS) sent
petitioner and Mr. Peiman notices of intent to levy, but the
notices were returned as refused or unclaimed.5 In March 2004
petitioner requested relief from joint and several liability
under section 6015(f) by filing a Form 8857, Request for Innocent
Spouse Relief (And Separation of Liability and Equitable Relief),
and a Form 12510, Questionnaire for Requesting Spouse (discussed
infra). In September 2004 she filed a Form 12509, Statement of
Disagreement.6 In her Form 12509 she asserts that she did not
have income in 2000 and the 2000 tax liability derived from the
sale of Mr. Peiman’s business. She also claims that she did not
have access to IRS notices. And according to petitioner, she
receives no financial support from Mr. Peiman and is completely
penniless and without assets.
The IRS issued a final notice to petitioner in April 2005.
The IRS denied petitioner’s request for relief from joint and
several liability. The IRS determined that she had knowledge of
the liability and did not establish a belief that the tax would
be paid within a reasonable time. According to the IRS,
4
(...continued)
after it was filed” of $56,504.
5
The IRS also sent petitioner and Mr. Peiman notices of
intent to levy in February 2004, but the notices were returned as
refused or unclaimed.
6
The IRS’s preliminary determination was not submitted to
the Court as part of the record.
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petitioner failed to submit her divorce decree or indicate how
her bills were being paid.
Thereafter, petitioner filed a timely petition with the
Court. In her petition she asserts that she had no income for
2000 and did not have access to financial information since she
and Mr. Peiman were separated. She also claims that she had no
knowledge of whether the tax would be paid. According to
petitioner, she receives no financial support from Mr. Peiman and
“imposing this debt on [her] would cause [her] great economic
hardship.” As of October 30, 2006, petitioner and Mr. Peiman’s
account balance was $19,087.38.
Discussion
I. Joint and Several Liability and Section 6015(f) Relief
Section 6013(d)(3) provides that if a joint return is filed,
the tax is computed on the taxpayers’ aggregate income, and
liability for the resulting tax is joint and several. See also
sec. 1.6013-4(b), Income Tax Regs. But the IRS may relieve a
taxpayer from joint and several liability under section 6015(f)
if, taking into account all the facts and circumstances, it is
inequitable to hold the taxpayer liable for any unpaid tax or
deficiency and the taxpayer does not qualify for relief under
section 6015(b) or (c). Except as otherwise provided in section
6015, the taxpayer bears the burden of proof. See Rule 142(a);
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Alt v. Commissioner, 119 T.C. 306, 311 (2002), affd. 101 Fed.
Appx. 34 (6th Cir. 2004).
The Commissioner has issued revenue procedures to guide IRS
employees in determining whether a requesting spouse is entitled
to relief from joint and several liability. See Rev. Proc.
2003-61, 2003-2 C.B. 296, modifying and superseding Rev. Proc.
2000-15, 2000-1 C.B. 447. Rev. Proc. 2003-61, supra, lists the
factors that IRS employees should consider, and the Court also
uses the factors when reviewing the IRS’s denial of relief. See
Washington v. Commissioner, 120 T.C. 137, 147-152 (2003).
II. Rev. Proc. 2003-61, Sec. 4.01: Seven Threshold Conditions
for Relief
Rev. Proc. 2003-61, sec. 4.01, 2003-2 C.B. at 297, begins
with a list of seven threshold conditions that a taxpayer must
satisfy in order to qualify for equitable relief. The Court will
not recite them. Respondent concedes that petitioner satisfies
the threshold requirements.
III. Rev. Proc. 2003-61, Sec. 4.02: Circumstances Ordinarily
Allowing for Relief
Where the requesting spouse satisfies the threshold
conditions of Rev. Proc. 2003-61, sec. 4.01, then Rev. Proc.
2003-61, sec. 4.02, 2003-2 C.B. at 298, sets forth the
circumstances in which the IRS will ordinarily grant relief under
section 6015(f) for an underpayment of a properly reported
liability. To qualify for relief under Rev. Proc. 2003-61, sec.
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4.02, the requesting spouse must: (1) No longer be married to,
be legally separated from, or have not been a member of the same
household as the nonrequesting spouse at any time during the
12-month period ending on the date of the request for relief;
(2) have had no knowledge or reason to know when the return was
signed that the nonrequesting spouse would not pay the tax
liability; and (3) suffer economic hardship if relief is not
granted.
Petitioner was divorced from Mr. Peiman when she requested
relief. The first requirement is satisfied.
In the case of a reported but unpaid liability, the relevant
knowledge is whether the taxpayer knew or had reason to know when
the return was signed that the tax would not be paid. Washington
v. Commissioner, supra at 151; Feldman v. Commissioner, T.C.
Memo. 2003-201, affd. 152 Fed. Appx. 622 (9th Cir. 2005). The
general rule for unpaid liabilities is that the requesting spouse
must establish that: (1) When the requesting spouse signed the
return, the requesting spouse had no knowledge or reason to know
that the tax reported on the return would not be paid; and (2) it
was reasonable for the requesting spouse to believe that the
nonrequesting spouse would pay the tax shown due. Morello v.
Commissioner, T.C. Memo. 2004-181; Ogonoski v. Commissioner, T.C.
Memo. 2004-52; Collier v. Commissioner, T.C. Memo. 2002-144.
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In petitioner’s Form 12510, she asserts that she was not
involved in the preparation of the Forms 1040 and 1040X because a
C.P.A. prepared them and she did not review the Forms 1040 and
1040X because they were too complicated. She also claims that
she did not assist Mr. Peiman with his business, and she had only
minor business experience. She also claims that she knew a
balance was due and just assumed the tax would be paid. And she
did not know how much money Mr. Peiman had in his BT Alex Brown
account or what funds were available to pay the tax. She also
did not know what efforts she or Mr. Peiman made to pay the tax
after the returns were filed. She adds that she knew that they
were having financial problems at the time the return was filed
due to a “child custody fight” with Mr. Peiman’s ex-spouse.
According to petitioner, she had full access to a joint account
from which she wrote checks to pay their household expenses. But
she did not review the monthly bank statements, balance the
checkbook, or open their household mail. Finally, she claims
that Mr. Peiman held a separate account with respect to the
takeover of IAG to which she did not have access and from which
he transferred funds into their joint account.
At trial petitioner testified that she did not review the
Form 1040, and she was not able to look at the “taxes and * * *
figure out what all of [it] was.” She also testified that she
went with Mr. Peiman to the post office to mail the Form 1040.
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But she just assumed that Mr. Peiman had enclosed a payment for
their tax liability because he said he did.
Generally, it is permissible to consider the complexity of
the nonrequesting spouse’s financial or business affairs in
determining whether the requesting spouse knew or had reason to
know of the underpayment. Compare Sanders v. United States, 509
F.2d 162, 169-170 (5th Cir. 1975) (complexity is a “permissible
consideration”), with McCoy v. Commissioner, 57 T.C. 732, 734
(1972) (lack of knowledge predicated on mere ignorance of the tax
consequences is not a defense where the facts are within the
requesting spouse’s possession or reasonably within reach), and
Beatty v. Commissioner, T.C. Memo. 2007-167 (taxpayer would not
have understood the reported information that was attributable to
her husband and his business of which she had no knowledge).
Although petitioner only has a high school education, she
was the president and registered agent of NLS and an officer and
director of Star Millennium during 2000. In addition, Mr. Peiman
“delegated most of that stuff”, e.g., bookkeeping, accounting,
and bank reconciliation of these entities, to petitioner. Their
C.P.A. would ask petitioner for information about cash account
balances, bank reconciliation, check coding, reconciliation of
accounts receivable balances, and etc., while he prepared the
various income tax returns and schedules of NLS and Star
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Millennium. She was also employed by IAG and was actively
involved in its accounting functions.
The record therefore supports an inference that petitioner
was quite sophisticated with respect to the issues pertaining to
her and Mr. Peiman’s various tax matters. The Court therefore
does not give much weight to petitioner’s claims that she did not
review their Forms 1040 and 1040X because they were too complex
and that she did not have much business experience. The Court
finds that the complexity of petitioner and Mr. Peiman’s Forms
1040 and 1040X and her purported lack of business experience do
not excuse petitioner’s failure to exercise her duty of inquiry.
Petitioner was also actively involved in the household’s
finances: she had full access to a joint account from which she
wrote checks to pay their household expenses. And she “monitored
the account to know what was in there and when money was needed”,
notwithstanding her claims that she did not review their monthly
bank statements, balance their checkbook, or open their household
mail.
Arguably, Mr. Peiman might have been evasive or deceitful
because he told petitioner that he had enclosed a payment for
their 2000 tax liability with their Form 1040 but did not and he
held money in the BT Alex Brown account, the amount of which
petitioner had no knowledge. Compare Jonson v. Commissioner, 118
T.C. 106, 119-120 (2002) (relief unavailable where requesting
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spouse did not establish that the requesting spouse concealed or
deceived her concerning their financial affairs and she had
access to financial files), affd. 353 F.3d 1181 (10th Cir. 2003),
with Albin v. Commissioner, T.C. Memo. 2004-230 (and cases cited
therein). But Mr. Peiman was not otherwise evasive or deceitful
about their business or personal affairs or about the fact that
their Forms 1040 and 1040X showed a balance due. Indeed,
petitioner was quite aware of these issues, yet she would have
the Court believe that she placed blind faith in and deferred to
Mr. Peiman to pay the 2000 tax liability without any inquiry into
its payment.
Inquiry by petitioner was essential in view of her
admissions that she: (1) Knew their Forms 1040 and 1040X showed
a balance due; (2) did not know how much money was in the BT Alex
Brown account; (3) did not know what money was available to pay
their 2000 tax liability; and (4) knew they were having financial
difficulties on account of Mr. Peiman’s child custody issues.
See, e.g., Stolkin v. Commissioner, T.C. Memo. 2008-211 (the
Court has consistently found that a requesting spouse’s knowledge
of their financial difficulties deprives the requesting spouse of
reason to believe that the nonrequesting spouse will pay the tax
liability).
Moreover, the record supports an inference that petitioner
might have been aware that Mr. Peiman had a habit or practice of
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skirting some of his financial responsibilities. Indeed, at
trial she asked their C.P.A. whether he was aware that: (1) Mr.
Peiman had tax issues in the past; (2) Mr. Peiman had a payment
plan “in the 90’s with the [IRS]”; (3) NLS was created to shield
assets from Mr. Peiman’s ex-spouse; and (4) Mr. Peiman moved to
Costa Rica to hide or shield assets from Mr. Peiman’s ex-spouse.
Apparently, red flags were flying, but petitioner failed to heed
the warnings and abdicated her duty of inquiry.
Upon the basis of the foregoing, the Court finds that
petitioner has not proven that she did not know or have reason to
know when she signed their Forms 1040 and 1040X that the balance
shown as due would not be paid. Petitioner is not entitled to
relief under Rev. Proc. 2003-61, sec. 4.02, and the Court need
not discuss the third requirement.
IV. Rev. Proc. 2003-61, Sec. 4.03: Other Factors
Where the requesting spouse fails to qualify for relief
under Rev. Proc. 2003-61, sec. 4.02, the IRS may nevertheless
grant relief under Rev. Proc. 2003-61, sec. 4.03, 2003-2 C.B. at
298. The Court’s analysis with respect to the nonexhaustive list
of factors contained in Rev. Proc. 2003-61, sec. 4.03 is
described below.
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A. Marital Status
The IRS will take into consideration whether the requesting
spouse is divorced or separated from the nonrequesting spouse.
Rev. Proc. 2003-61, sec. 4.03(2)(a)(i), 2003-2 C.B. at 298.
Petitioner was divorced from Mr. Peiman when she filed her
request. This factor weighs in favor of relief. See McKnight v.
Commissioner, T.C. Memo. 2006-155 (divorce weighs in favor of
relief under Rev. Proc. 2003-61); cf. Butner v. Commissioner,
T.C. Memo. 2007-136 (same under Rev. Proc. 2000-15).
B. Economic Hardship
The IRS will take into consideration whether the requesting
spouse will suffer economic hardship if relief is not granted.
Rev. Proc. 2003-61, sec. 4.03(2)(a)(ii), 2003-2 C.B. at 298.
Generally, economic hardship exists if collection of the tax
liability will cause the taxpayer to be unable to pay reasonable
basic living expenses. Butner v. Commissioner, supra. In
determining a reasonable amount for basic living expenses, the
Court considers, among other things: (1) The taxpayer’s age,
employment status and history, ability to earn, and number of
dependents; (2) an amount reasonably necessary for food,
clothing, housing, medical expenses, transportation, current tax
payments, and expenses necessary to the taxpayer’s production of
income; (3) the cost of living in the taxpayer’s geographic area;
(4) the amount of property available to satisfy the taxpayer’s
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expenses; (5) any extraordinary circumstances; e.g., special
education expenses, a medical catastrophe, or a natural disaster;
and (6) any other factor bearing on economic hardship. Sec.
301.6343-1(b)(4)(ii), Proced. & Admin. Regs.
The IRS has issued guidelines for allowable expenses.7
“Necessary expenses are those that meet the necessary expense
test; i.e., ‘they must provide for a taxpayer’s and his or her
family’s health and welfare and/or the production of income’ and
they must be reasonable.” Schulman v. Commissioner, T.C. Memo.
2002-129 n.6. There are three types of necessary expenses:
(1) Those based on national standards; e.g., food, housekeeping
supplies, clothing, and personal care products and services;
(2) those based on local standards; e.g., housing, utilities, and
transportation; and (3) other expenses, which are not based on
national or local standards. Id.
Except as otherwise noted, petitioner has not substantiated
her basic living expenses; e.g., by providing receipts or
statements. Accordingly, the Court will use the following
amounts in its analysis of petitioner’s claim of economic
hardship:
7
The guidelines are published on the IRS’s Web site at
http://www.irs.gov/individuals/article/0,,id=96543,00.html (last
visited May 1, 2009). The amount listed as the national or local
standard is effective as of Mar. 1, 2009.
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Expenditure Amount Allowed
1
Housing & utilities $1,581
2
Auto 561
3
Food 537
3
Housekeeping supplies 66
3
Apparel & services 162
Personal care products
3
& services 55
3
Miscellaneous 165
Total 3,127
1
Based on the local standard for a two-person family.
2
Petitioner’s actual payment of $360 per month plus the
local operating standard of $201 per month for a single
taxpayer with one car. Although petitioner’s credit report
shows that she has another automobile lease payment of $332
per month, she has not proven that the second automobile is
a necessary expense.
3
Based on the national standard for a two-person family.
Petitioner claims (unsubstantiated) wages of $1,277.76 per
month on her Form 12510. Thus, it appears that imposing the tax
liability on petitioner would cause her an economic hardship
since her allowable monthly expenses exceed her wages by
$1,849.24. Additionally, her credit report shows that she is
indebted to the extent of $250,543. But she has not
substantiated her wages or proven the value of her assets that
could be used to satisfy her liability, such as the equity in her
condo that she “left” to her stepdaughter, the value of her
interests in her corporations, if any, or the value of any claims
she might have against Mr. Peiman for alimony or child support.
Further she supports only one child, is in her midthirties, and
is gainfully employed as a branch manager at a bank, making
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$54,000 per year. The Court therefore finds that petitioner has
not proven that she will suffer economic hardship if relief is
not granted.8 See Monsour v. Commissioner, T.C. Memo. 2004-190
(requesting spouse must prove that the expenses qualify and that
they are reasonable). This factor weighs against granting
relief. See Banderas v. Commissioner, T.C. Memo. 2007-129 (lack
of economic hardship weighs against relief under Rev. Proc.
2003-61); cf. Butner v. Commissioner, supra (same under Rev.
Proc. 2000-15).
C. Knowledge or Reason To Know
The IRS will consider whether the requesting spouse did not
know or had no reason to know that the nonrequesting spouse would
not pay the liability. Rev. Proc. 2003-61, sec.
4.03(2)(a)(iii)(A), 2003-2 C.B. at 298.
Petitioner has failed to establish that she did not know or
have reason to know when the Forms 1040 and 1040X were filed that
the tax liability would not be paid. See supra pp. 10-13. This
factor weighs against granting relief. See Beatty v.
Commissioner, T.C. Memo. 2007-167 (knowledge or reason to know
weighs against relief under Rev. Proc. 2003-61); cf. Levy v.
Commissioner, T.C. Memo. 2005-92 (same under Rev. Proc. 2000-15).
8
The Court also notes that petitioner took her child to
China for a vacation in 2008 despite her claim that imposing the
tax liability on her would cause her to suffer economic hardship.
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D. Nonrequesting Spouse’s Legal Obligation
The IRS will consider whether the nonrequesting spouse has a
legal obligation to pay the outstanding tax liability pursuant to
a divorce decree or agreement. Rev. Proc. 2003-61, sec.
4.03(2)(a)(iv), 2003-2 C.B. at 298.
There is no evidence in the record of a divorce decree or
agreement showing that the unpaid tax liability was the legal
obligation of Mr. Peiman. Therefore, this factor is neutral.
See Magee v. Commissioner, T.C. Memo. 2005-263 (applying Rev.
Proc. 2003-61); cf. Butner v. Commissioner, T.C. Memo. 2007-136
(applying Rev. Proc. 2000-15).
E. Significant Benefit
The IRS will consider whether the requesting spouse received
any significant benefit beyond normal support as a result of the
unpaid tax liability. Rev. Proc. 2003-61, sec. 4.03(2)(a)(v),
2003-2 C.B. at 299.
There is nothing indicating that petitioner received any
significant benefit from her and Mr. Peiman’s unpaid tax
liability. Therefore, this factor weighs in favor of relief.
See Magee v. Commissioner, supra (lack of significant benefit
weighs in favor of relief under Rev. Proc. 2003-61); cf. Butner
v. Commissioner, supra (lack of significant benefit weighed in
favor of relief under former section 6013(e) notwithstanding that
Rev. Proc. 2000-15 states that it is neutral).
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F. Compliance With Federal Tax Laws
The IRS will take into consideration whether the requesting
spouse has made a good faith effort to comply with the Federal
income tax laws in succeeding years. Rev. Proc. 2003-61, sec.
4.03(2)(a)(vi), 2003-2 C.B. at 299.
Respondent agrees that petitioner has complied with the
Federal income tax laws. This factor weighs in favor of relief.
See Fox v. Commissioner, T.C. Memo. 2006-22 (noncompliance weighs
against relief under Rev. Proc. 2003-61); cf. Butner v.
Commissioner, supra (same under Rev. Proc. 2000-15).
G. Abuse
The IRS will consider whether the nonrequesting spouse
abused the requesting spouse. Rev. Proc. 2003-61, sec.
4.03(2)(b)(i), 2003-2 C.B. at 299. The presence of abuse is a
factor favoring relief, and a history of abuse may mitigate the
requesting spouse’s knowledge or reason to know. Id.
In both Forms 8857 and 12510 petitioner claimed that she was
not abused by Mr. Peiman. But in petitioner’s pretrial
memorandum she claimed that she was abused by Mr. Peiman in that:
(1) When Mr. Peiman saw that he was going to lose her, he trapped
her; (2) she could not leave because she would be alienated from
her finances and knowledge of their assets; and (3) when she
“still wanted to leave” Mr. Peiman tricked her into traveling to
Costa Rica for the purpose of divorcing her and leaving her with
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nothing. At trial she testified that she was not physically
abused, but “there was abuse in the marriage to the extent that
she could not leave” because she would be alienated from their
finances and knowledge of their assets.
The Court is skeptical that petitioner’s purported abuse
falls within the definition of or rises to the level of abuse
contemplated by the Federal income tax laws. See Nihiser v.
Commissioner, T.C. Memo. 2008-135, for an extensive discussion of
the abuse factor. The Court, however, need not decide the issue
because the Court accords little weight to petitioner’s
subsequent inconsistent statements about her purported abuse.
See Sundel v. Commissioner, T.C. Memo. 1998-78 (and cases cited
therein), affd. without published opinion 201 F.3d 428 (1st Cir.
1999); McGirl v. Commissioner, T.C. Memo. 1996-313, affd. without
published opinion 131 F.3d 143 (8th Cir. 1997). Therefore, this
factor is neutral. See Magee v. Commissioner, supra (lack of
abuse is a neutral factor under Rev. Proc. 2003-61); cf. Butner
v. Commissioner, supra (same under Rev. Proc. 2000-15).
H. Mental or Physical Health
The IRS will take into consideration whether the requesting
spouse was in poor mental or physical health on the date she
signed the return or at the time relief was requested. Rev.
Proc. 2003-61, sec. 4.03(2)(b)(ii), 2003-2 C.B. at 299.
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There is no evidence in the record that petitioner’s mental
or physical health was poor; therefore, this factor is neutral.
See id.; see also Magee v. Commissioner, supra.
Conclusion: Weight of the Factors
Three factors weigh in favor of relief, two factors weigh
against relief, and three factors are neutral. Although the
decision is close, the Court concludes that the Appeals officer
did not err in concluding that petitioner is not entitled to
relief from joint and several liability under section 6015(f).
See Porter v. Commissioner, 132 T.C. __ (2009). Respondent’s
determination is therefore sustained.
To reflect the foregoing,
Decision will be entered
for respondent.