Raymond v. Comm'r , 119 T.C. 191 ( 2002 )

RANIE M. RAYMOND, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Raymond v. Comm'r

No. 2354-01L

United States Tax Court

119 T.C. 191; 2002 U.S. Tax Ct. LEXIS 48; 119 T.C. No. 11;

October 22, 2002, Filed

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Respondent's motion for summary judgment was granted.

On her 1991 tax return, P's filing status was listed as

   "Married filing separate return". On Jan. 9, 2001, R

   sent P a Notice of Determination Concerning Collection Action(s)

   Under Section 6320 and/or 6330 regarding the 1991 tax year in

   which R determined that P was not entitled to raise a spousal

   defense because she did not file a joint return. On Feb. 12,

   2001, P sent to the Tax Court a Petition for Lien or Levy Action

   Under Code Section 6320(c) or 6330(d). R filed a Motion for

   Partial Summary Judgment on the issue of whether P is eligible

   for relief under I.R.C. sec. 6015.

     Held: The petition was timely filed in order for

   the Court to have jurisdiction to review R's denial of spousal

   relief. Sec. 6015(e)(1), I.R.C.

     Held, further, R's Motion for Partial Summary

   Judgment is granted because there is no genuine issue as to

   whether P is entitled to relief under I.R.C. sec. 6015. P is not

   entitled to relief underI.R.C. secs. 6015(b), (c), and (f)

   because she did not file a joint return.

Ranie M. Raymond, pro se.

A. Gary Begun, for respondent.

Vasquez, Juan F.

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VASQUEZ

OPINION

VASQUEZ, Judge: This case is before the Court on respondent's motion for partial summary judgment under Rule 121.

On July 11, 2000, respondent sent petitioner a Final Notice: Notice of Intent to Levy and Notice of Your Right to a Hearing. *51 Under Code Section 6320(c) or 6330(d).

On June 14, 2001, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by section 6330(d). Petitioner objected to this motion. On January 2, 2002, respondent filed a Motion to Withdraw Respondent's Motion to Dismiss for Lack of Jurisdiction. On January 2, 2002, respondent also filed a Motion for Partial Summary Judgment on the issue of whether petitioner is eligible for relief under section 6015. On January 30, 2002, petitioner filed a response to respondent's motion for partial summary judgment wherein petitioner objected to the granting of the motion.

Discussion

Petitioner alleges that she signed a blank form, she did not fill out the tax return, and she did not earn the income listed on the tax return. Petitioner filed the petition to request relief from liability under section 6015 for tax due on the income listed on her tax return that she allegedly did not earn.

The issues presented are: (1) Whether the petition was timely filed for this Court to have jurisdiction; and (2) whether a taxpayer must file a joint return to be eligible for relief under section 6015.

I. Jurisdiction

It is well settled that this Court can proceed in a case only if we have jurisdiction and that any party, or the Court sua sponte, can question jurisdiction at any time, even after the case has been tried and briefed. Neely v. Commissioner, 115 T.C. 287">115 T.C. 287, 290 (2000); Romann v. Commissioner, 111 T.C. 273">111 T.C. 273, 280 (1998); Normac, Inc. & Normac Intl. v. Commissioner, 90 T.C. 142">90 T.C. 142, 146-147 (1988); Brown v. Commissioner, 78 T.C. 215">78 T.C. 215, 218 (1982).

Our jurisdiction under section 6330(d)(1) depends on the issuance of a valid notice of determination and a timely petition for review. Lunsford v. Commissioner, 117 T.C. 159">117 T.C. 159, 165 (2001). Section 6330(d)(1) provides that a person may appeal a notice of determination by filing a petition within 30 days of the notice. Sec. 6330(d)(1).

We lack jurisdiction to review petitioner's claim under section 6330. Petitioner filed a petition with this Court later than 30 days after the notice of determination. section 6330(d)(1) is jurisdictional and cannot be extended. McCune v. Commissioner, 115 T.C. 114">115 T.C. 114, 117 (2000).

However, petitioner raised a spousal defense in the Appeals Office proceeding before the Commissioner made a final determination. Sec. 6330(c)(2)(A)(i); sec. 301.6330-1(e)(2), Proced. & Admin. Regs. In the notice of determination, respondent determined that petitioner was not entitled to relief under section 6015 because she did not file a joint return.

The timelines of the petition, insofar as it seeks review of the administrative denial of section 6015 relief, is, therefore, dependent upon section 6015(e)(1). section 6015 relief because petitioner filed her petition within 90 days of the notice of determination. *54 II. Motion for Partial Summary Judgment

Respondent moved for partial summary judgment on the issue of whether petitioner is eligible for relief under section 6015. Respondent argues that petitioner is not entitled to relief under section 6015 because she did not file a joint tax return.

Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy. Full or partial summary judgment may be granted only if it is demonstrated that no genuine issue exists as to any material fact and a decision may be entered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518">98 T.C. 518, 520 (1992), affd. 17 F.3d 965">17 F.3d 965 (7th Cir. 1994).

A. Relief Under Section 6015(b) and (c)

Relief is not available to petitioner under section 6015(b) and (c) because petitioner did not file a joint return. Both sections explicitly require that a joint return be filed for relief to be granted. ^{Sec. 6015(b) and (c).}

B. Relief Under Section 6015(f)

On its face, section 6015(f) does not require that a joint return be filed in order for equitable relief to be granted under that section. section 6015(f), the Commissioner uses procedures under Rev. Proc. 2000-15, 1 C.B. 447">2000-1 C.B. 447 (the revenue procedure), to determine whether an individual qualifies for relief under that section. Section 4.01 of the revenue procedure lists seven threshold conditions, including the filing of a joint return, that must be satisfied before the Commissioner will consider a request for relief under section 6015(f). *56 The legislative history of section 6015 further demonstrates that Congress intended a joint return requirement to apply to section 6015(f). The conference agreement accompanying the enactment of section 6015(f) contemplates that a joint return be filed as a prerequisite for the grant of equitable relief. H. Conf. Rept. 105-599, at 254 (1998), 3 C.B. 747">1998-3 C.B. 747, 1008. The agreement stated:

     The conference agreement does not include the portion of

   the Senate amendment that could provide relief in situations

   where tax was shown on a joint return, but not paid with

   the return. The conferees intend that the Secretary will

   consider using the grant of authority to provide equitable

   relief in appropriate situations to avoid the inequitable

   treatment of spouses in such situations. * * *

     The conferees do not intend to limit the use of the

   Secretary's authority to provide equitable relief to situations

   where tax is shown on a return but not paid. The conferees

   intend that such authority be used where, taking into account

   all the facts and circumstances, it is inequitable to hold an

   individual liable for all or part of any unpaid tax or

   deficiency arising from a joint return. * * * [Emphasis

   added.]

Id. The agreement clarifies that the conferees intended that relief may be granted if it is inequitable to hold the taxpayer liable for the unpaid tax or deficiency shown on a joint return.

This requirement of a joint return is also consistent with the caption to section 6015, Relief From Joint and Several Liability on Joint Return.

We, therefore, conclude that a joint return must be filed in order for a taxpayer to be granted equitable relief under section 6015(f).

As a result, we shall grant respondent's motion for partial summary judgment because no genuine issue exists as to whether petitioner is entitled to relief under section 6015. Petitioner is not entitled to relief under section 6015 because she did not file a joint return. Because respondent's motion for partial summary judgment covers the remaining issues in the instant case, we treat it as a motion for full summary judgment, which we shall grant.

To reflect the foregoing,

An appropriate order and decision will be entered.

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Footnotes

• 1. Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code in effect at all relevant times.↩

• 2. The notice listed that petitioner owed $ 7,097.82 in unpaid taxes for 1991 and $ 8,211.05 in penalties and interest for that year.↩

• 3. Petitioner sent her petition to the Tax Court 34 days after respondent mailed her the notice of determination.↩

• 4. Sec. 6015(e)(1) provides, in pertinent part:

  SEC. 6015(e). Petition for Review by Tax Court. --

  (1) In General. -- In the case of an individual against whom a deficiency has been asserted and who elects to have subsection (b) or (c) apply --

       (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, by certified or

          registered mail to the taxpayer's last known address,

          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).↩

• 5. See sec. 301.6330-1(f)(2), Proced. & Admin. Regs. This regulation provides:

     Q-F2. With respect to the relief available to the taxpayer under

     section 6015, what is the time frame within which a taxpayer may

     seek Tax Court review of Appeals' determination following a CDP

     hearing?

     A-F2. If the taxpayer seeks Tax Court review not only of

     Appeals' denial of relief under section 6015, but also of relief

     with respect to other issues raised in the CDP hearing, the

     taxpayer should request Tax Court review within the 30-day

     period commencing the day after the date of the Notice of

     Determination. If the taxpayer only seeks Tax Court review of

     Appeals' denial of relief under section 6015, the taxpayer

     should request review by the Tax Court, as provided by section

     6015(e), within 90 days of Appeals' determination. If a request

     for Tax Court review is filed after the 30-day period for

     seeking judicial review under section 6330, then only the

     taxpayer's section 6015 claims may be reviewable by the Tax

     Court.↩

• 6. Sec. 6015(b) provides:

        SEC. 6015(b). Procedures for Relief from Liability

     Applicable to All Joint Filers. --

       (1) In General. -- Under procedures prescribed by the

     Secretary, if --

          (A) a joint return has been made for a taxable

       year;

          (B) on such return there is an understatement of tax

       attributable to erroneous items of 1 individual filing the

       joint return;

          (C) the other individual filing the joint return

       establishes that in signing the return he or she 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 other

       individual liable for the deficiency in tax for such

       taxable year attributable to such understatement; and

          (E) the other individual elects (in such form as the

       Secretary may prescribe) the benefits of this subsection

       not later than the date which is 2 years after the date the

       Secretary has begun collection activities with respect to

       the individual making the election,

     then the other person shall be relieved of the liability for tax

     * * * for such taxable year to the extent such liability is

     attributable to such understatement. [Emphasis added.]

  Sec. 6015(c) provides:

        SEC. 6015(c). Procedures to Limit Liability for Taxpayers

     No Longer Married or Taxpayers Legally Separated or Not Living

     Together. --

          (1) In General. -- Except as provided in this

       subsection, if an individual who has made a joint return

       for any taxable year elects the application of this

       subsection, the individual's liability for any deficiency

       which is assessed with respect to the return shall not

       exceed the portion of such deficiency properly allocable to

       the individual under subsection (d). [Emphasis added.]↩

• 7. Sec. 6015(f) provides:

   SEC. 6015(f). Equitable Relief. -- Under procedures prescribed by the Secretary, if --

  (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either); and

  (2) relief is not available to such individual under subsection (b) or (c), the Secretary may relieve such individual of such liability.↩

• 8. The revenue procedure provides, in pertinent part:

  4.01 Eligibility to be considered for equitable relief. All of the following threshold conditions must be satisfied before the Service will consider a request for equitable relief under sec. 6015(f). * * *

  (1) The requesting spouse filed a joint return for the taxable year for which relief is sought; * * *. ↩