CASTLE v. COMMISSIONER ( 2002 )

SUSAN L. CASTLE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

CASTLE v. COMMISSIONER

No. 10195-00

United States Tax Court

T.C. Memo 2002-142; 2002 Tax Ct. Memo LEXIS 147;

June 6, 2002, Filed

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Respondent did not abuse his discretion in denying petitioner relief under section 6015(f).

Gino Pulito, for petitioner.

Katherine Lee Kosar and Dennis G. Driscoll, for respondent.

Chiechi, Carolyn P.

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CHIECHI

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: This case arises from a request for equitable relief (relief) under section 6015(f)^{*148 the 1993 joint return as the paid preparer of that return. The 1993 joint return showed, inter alia, wages totaling $ 25,625 received by petitioner from Adia Services, Inc. of Ohio and Banc One Vehicle Finance Corp., income from Mr. Castle's Schedule C computer consulting business of $ 67,849, Federal income tax (tax) of $ 26,056, tax withheld from petitioner's wages of $ 2,344, estimated tax payments of $ 255, and tax due of $ 23,457.}

On April 17, 1996, petitioner filed with the Internal Revenue Service (IRS) a return for her taxable year 1994 (petitioner's 1994 return). *149 June 24, 1996, almost 2 years after petitioner and Mr. Castle signed the 1993 joint return, they filed it with the IRS. At the time they filed the 1993 joint return, petitioner and Mr. Castle did not pay the tax due shown in that return.

On August 19, 1996, respondent assessed the following amounts with respect to the 1993 joint return: Tax of $ 26,056, *150 Husband.

     C. Husband shall assume and pay the following debts,

     holding Wife harmless therefrom:

        1. All financial and tax obligations as follows:

          A) Internal Revenue Service in the amount of

          $ 19,000.00;

           B) Internal Revenue Service in the amount of

          $ 4,207 (Dairy Queen);

          C) State Industrial Insurance in the amount of

          $ 1,600.00;

          D) Employment taxes in the amount of $ 406.00

          (Nevada);

          E) Sales taxes in the amount of $ 6,095.00; and

          F) Business license fees in the amount of

          $ 276.00.

     D. Wife must file individual tax returns for 1997 and

     thereafter, and if requested, sign an amended joint tax

     return with Husband for 1995 and 1996. Husband shall pay

     any sums due of the 1995 and 1996 tax returns.

     E. As to the business interest of the parties in the

     corporation known as LANTech, Inc., the parties agree that

     Wife shall convey her 50% shareholder interest in the

     corporation to Husband.

     13. The parties agree that all joint checking accounts,

   savings accounts, mutual funds, etc., maintained by the parties

   are to be closed, with the proceeds therein to be divided

   equally between the parties.

           *   *   *   *   *   *   *

     15. All other remaining property, both real and personal,

   has been divided and distributed by and between the parties

   pursuant to oral agreement by and between the parties.

On July 23, 1998, petitioner and Mr. Castle divorced. The property settlement agreement was incorporated by reference in, and made part of, the divorce decree.

On May 15, 1999, petitioner submitted to respondent Form 8857, Request for Innocent Spouse Relief, with respect to petitioner's taxable year 1993.

On May 25, 1999, petitioner wrote a letter to respondent in which she stated, inter alia:

   To the best of my recollection a tax return was filed for the

   year 1993 and all taxes if owed paid.

     As stated before I was not married to Roger Castle until

   October 31, 1994 and thus would not have any tax obligation for

   the tax year 1993 as his spouse. I believe he has fraudulently

   claimed himself as married on his tax return of 1993. I have no

   whereabouts of Mr. Castle. Furthermore he took all records and

   tax returns after our divorce.

     This has been very disheartening for me, as I pay all my

   taxes if owed. I feel I should not be held liable or obligated

   to pay someone else's tax responsibility especially if done

   unlawfully. I also have been threaten by the financial

   institution where I took out a short term loan that was to be

   paid back by my tax return. This has effected my good credit

   rating.

     I have filled out and am returning form 8857, Request for

   Innocent Spouse Relief. [Reproduced literally.]

On May 1, 2000, respondent issued to petitioner a letter in response to petitioner's request for relief from joint and several liability with respect to petitioner's taxable year 1993. That letter stated, inter alia:

   Ms. Susan Castle is not entitled to relief from any tax

   liability under the provisions of Internal Revenue Code 6015(b),

   6015(c) nor 6015(f).

   It was determined that Ms. Castle knew or had reason to know of

   the deficiency, and she failed to prove that a hardship would

   result if she were to pay the liability.

On June 23, 2000, respondent issued to petitioner a final notice (final notice) of respondent's determination that petitioner is not entitled to relief from joint and several liability under either section 6015(b), (c), or (f) with respect to petitioner's taxable year 1993. With respect to respondent's determination under section 6015(f), the final notice stated: "It is determined that you do not qualify for equitable relief under IRC Section 6015(f). You have not established all the elements necessary to grant you relief."

At the time of the trial in this case, the total assessed but unpaid liability with respect to the 1993 joint return (not including certain accruals) was $ 31,642.34 (the unpaid 1993 liability).

                OPINION

We review respondent's denial of relief under section 6015(f) for abuse of discretion. Butler v. Commissioner, 114 T.C. 276">114 T.C. 276, 292 (2000). Petitioner bears the burden of proving that respondent abused respondent's discretion in denying that relief. See Jonson v. Commissioner, 118 T.C. 106">118 T.C. 106, 125 (2002).

Section 6015(f) grants respondent discretion to relieve an individual who files a joint return from joint and several liability with respect to that return. That section 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.

   In the instant case, the parties agree that relief is not

   available to petitioner under section 6015(b) or (c), thereby

   satisfying section 6015(f)(2).

As directed by section 6015(f), respondent has prescribed procedures in Rev. Proc. 2000-15, 1 C.B. 447">2000-1 C.B. 447 (Revenue Procedure 2000-15), to be used in determining whether an individual qualifies for relief under that section. Section 4.01 of Revenue Procedure 2000-15 lists seven conditions (threshold conditions) which must be satisfied before the IRS will consider a request for relief under section 6015(f). In the instant case, respondent concedes that those conditions are satisfied. Where, as here, the requesting spouse satisfies the threshold conditions, section 4.01 of Revenue Procedure 2000-15 provides that a requesting spouse may be relieved under section 6015(f) of all or part of the liability in question if, taking into account all the facts and circumstances, the IRS determines that it would be inequitable to hold the requesting spouse liable for such liability.

Where, as here, the requesting spouse satisfies the threshold conditions, section 4.02(1) of Revenue Procedure 2000-15 sets forth the circumstances under which the IRS ordinarily will grant relief to that spouse under section 6015(f) in a case like the instant case where a liability is reported in a joint return but not paid. As pertinent here, those circumstances, which section 4.02 of Revenue Procedure 2000-15 and we refer to as elements, are:

     (a) At the time relief is requested, the requesting spouse

   is no longer married to * * * the nonrequesting spouse * * *.

     (b) At the time the return was signed, the requesting

   spouse had no knowledge or reason to know that the tax would not

   be paid. The requesting spouse must establish that it was

   reasonable for the requesting spouse to believe that the

   nonrequesting spouse would pay the reported liability. * * *;

   and

     (c) The requesting spouse will suffer economic hardship if

   relief is not granted. For purposes of this section, the

   determination of whether a requesting spouse will suffer

    economic hardship will be made by the Commissioner or the

   Commissioner's delegate, and will be based on rules similar to

   those provided in  301.6343-1(b)(4) of the Regulations on

   Procedure and Administration. [ Rev. Proc. 2000-15, sec. 4.02(1),

  2000-1 C. B. at 448]

(We shall hereinafter refer to the elements set forth in section 4.02(1)(a), (b), and (c) of Revenue Procedure 2000-15 as the marital status element, the knowledge or reason to know element, and the economic hardship element, respectively. )

Section 4.02(2) of Revenue Procedure 2000-15 provides that relief granted under section 4.02(1) of that revenue procedure is subject to the following limitations:

     (a) If the return is or has been adjusted to reflect an

   understatement of tax, relief will be available only to the

   extent of the liability shown on the return prior to any such

   adjustment; and

     (b) Relief will only be available to the extent that the

   unpaid liability is allocable to the nonrequesting spouse.

Turning to the three elements set forth in section 4.02(1) of Revenue Procedure 2000-15, the presence of which will ordinarily result in a grant of relief under section 6015(f), respondent concedes that the marital status element is present in this case.

With respect to the knowledge or reason to know element, petitioner contends that that element is present in this case because, "At the time of executing the [1993 joint] return, Petitioner had no reason to believe that any tax obligation resulting from the filing of the return would not be paid by Roger L. Castle." In support of that contention, petitioner testified that she did not even know that the 1993 joint return showed tax due of $ 23,457 because she was "hurried" when she signed it. ^{Geiger v. Commissioner, 440 F.2d 688">440 F.2d 688, 689-690 (9th Cir. 1971), affg. per curiam T.C. Memo 1969-159">T.C. Memo 1969-159; Tokarski v. Commissioner, 87 T.C. 74">87 T.C. 74, 77 (1986). On the record before us, we find that petitioner has failed to carry her burden of establishing that the knowledge or reason to know element is present in the instant case.}

With respect to the economic hardship element, ^*160 petitioner contends that that element is present in this case because, "Currently, Ms. Castle is not in a position to pay" the unpaid 1993 liability. In support of that contention, petitioner asserts that (1) "she [petitioner] has no assets which can be liquidated to pay this debt" and that (2) at the time of the trial in this case, she expected to be "furloughed from the airline [Continental Airlines]" in about 1 week.

Petitioner did not proffer any evidence to establish that, if she were to pay the unpaid 1993 liability, she would not be able to pay a reasonable amount for her basic living expenses. Indeed, except for petitioner's testimony that she expected to be "furloughed" from her position with Continental Airlines shortly after the trial in this case, petitioner did not proffer any evidence relating to the factors that section 301.6343-1(b)(4), Proced. & Admin. Regs., indicates are to be considered in determining a reasonable amount for basic living expenses. *161 hardship if she were not granted relief under section 6015(f). On the record before us, we find that petitioner has failed to carry her burden of establishing that the economic hardship element is present in this case.

Although petitioner has not shown that she qualifies for relief under section 4.02(1) of Revenue Procedure 2000-15, the IRS may nonetheless grant relief to her under section 4.03 of that revenue procedure. That section provides a partial list of positive and negative factors which respondent is to take into account in considering whether respondent will grant an individual relief under section 6015(f). No single factor is to be determinative in any particular case; all factors are to be considered and weighed appropriately; and the list of factors is not intended to be exhaustive. Rev. Proc. 2000-15, sec. 4.03, 2000-1 C. B. at 448.

As pertinent here, section 4.03(1) of Revenue Procedure 2000-15 sets forth the following positive factors which weigh in favor of granting relief under section 6015(f):

     (a) Marital status. The requesting spouse is * * *

   divorced from the nonrequesting spouse.

     (b) Economic hardship. The requesting spouse would

   suffer economic hardship (within the meaning of section

   4.02(1)(c) of this revenue procedure) if relief from the

   liability is not granted.

     (c) Abuse. The requesting spouse was abused by the

   nonrequesting spouse, but such abuse did not amount to duress.

     (d) No knowledge or reason to know. In the case of a

   liability that was properly reported but not paid, the

   requesting spouse did not know and had no reason to know that

   the liability would not be paid. * * *

     (e) Nonrequesting spouse's legal obligation. The

   nonrequesting spouse has a legal obligation pursuant to a

   divorce decree or agreement to pay the outstanding liability.

   This will not be a factor weighing in favor of relief if the

   requesting spouse knew or had reason to know, at the time the

   divorce decree or agreement was entered into, that the

   nonrequesting spouse would not pay the liability.

     (f) Attributable to nonrequesting spouse. The

   liability for which relief is sought is solely attributable to

   the nonrequesting spouse.

(We shall hereinafter refer to the positive factors set forth in section 4.03(1)(a), (b), (d), (e), and (f) of Revenue Procedure 2000- 15 as the marital status positive factor, the economic hardship positive factor, the knowledge or reason to know positive factor, the legal obligation positive factor, and the attribution positive factor, respectively.)

We note initially that the parties do not dispute that the marital status positive factor, the knowledge or reason to know positive factor, and the economic hardship positive factor set forth in section 4.03(1)(a), (d), and (b), respectively, of Revenue Procedure 2000-15 are the same as the marital status element, the knowledge or reason to know element, and the economic hardship element set forth in section 4.02(1)(a), (b), and (c), respectively, of that revenue procedure.

With respect to the marital status positive factor set forth in section 4.03(1)(a) of Revenue Procedure 2000-15, respondent concedes that that factor is present in the instant case.

With respect to the economic hardship positive factor and the knowledge or reason to know positive factor set forth in section 4.03(1)(b) and (d), respectively, of Revenue Procedure 2000-15, we have found above that petitioner has failed to carry her burden of establishing that the economic hardship element and the knowledge or reason to know element set forth in section 4.02(1)(c) and (b), respectively, of that revenue procedure are present in the instant case. On the instant record, we further find that petitioner has failed to carry her burden of establishing that those same positive factors are present for purposes of section 4.03(1) of Revenue Procedure 2000-15.

With respect to the positive factor set forth in section 4.03(1)(c) of Revenue Procedure 2000-15 (i. e., the requesting spouse was abused by the nonrequesting spouse), petitioner does not allege, and the record does not establish, any abuse by Mr. Castle.

With respect to the legal obligation positive factor set forth in section 4.03(1)(e) of Revenue Procedure 2000-15, petitioner contends that that factor is present in the instant case because Mr. Castle had a legal obligation to pay the unpaid 1993 liability. In support of that contention, petitioner asserts: "In accordance with the terms of the Property Settlement Agreement, * * * Roger L. Castle agreed to assume and pay debts holding Petitioner harmless from all financial and tax obligations enumerated therein, which included debt to the Internal Revenue Service." The property settlement agreement on which petitioner relies provided that Mr. Castle was to pay, inter alia, two "debts" (debts) owing to the IRS, one identified in that agreement as "Internal Revenue Service in the amount of $ 19,000.00" and the other identified in that agreement as "Internal Revenue Service in the amount of $ 4,207 (Dairy Queen)". That agreement does not indicate what type of Federal tax debts those amounts represent or to what taxable year or years those debts relate. On the instant record, we find that petitioner has failed to establish that the two "debts" to the IRS referred to in the property settlement agreement are part of the unpaid 1993 liability. On that record, we find that petitioner has failed to carry her burden of establishing that the legal obligation positive factor set forth in section 4.03(1)(e) of Revenue Procedure 2000-15 is present in the instant case.

With respect to the attribution positive factor set forth in section 4.03(1)(f) of Revenue Procedure 2000-15, respondent concedes on brief that "a significant portion of the unpaid [1993] liability results from Mr. Castle's income" and is attributable to Mr. Castle. Petitioner does not contend, and the record does not establish, that the unpaid 1993 liability is solely attributable to Mr. Castle. On the record before us, we find that petitioner has failed to carry her burden of establishing that the attribution positive factor set forth in section 4.03(1)(f) of Revenue Procedure 2000-15 is present in the instant case.

Turning to the negative factors weighing against granting relief under section 6015(f) set forth in section 4.03(2) of Revenue Procedure 2000-15, as pertinent here, those factors are:

     (a) Attributable to the requesting spouse. The

   unpaid liability * * * is attributable to the requesting spouse.

     (b) Knowledge, or reason to know. A requesting

   spouse knew or had reason to know * * * that the reported

   liability would be unpaid at the time the return was signed.

This is an extremely strong factor weighing against relief.

   Nonetheless, when the factors in favor of equitable relief are

   unusually strong, it may be appropriate to grant relief under

   6015(f) in limited situations where a requesting spouse

   knew or had reason to know that the liability would not be paid

   * * *.

     (c) Significant benefit. The requesting spouse has

   significantly benefitted (beyond normal support) from the unpaid

   liability * * *.

     (d) Lack of economic hardship. The requesting spouse

   will not experience economic hardship (within the meaning of

   section 4.02(1)(c) of this revenue procedure) if relief from

   liability is not granted.

     (e) Noncompliance with federal income tax laws. The

   requesting spouse has not made a good faith effort to comply

   with federal income tax laws in the tax years following the tax

   year or years to which the request for relief relates.

     (f) Requesting spouse's legal obligation. The

   requesting spouse has a legal obligation pursuant to a divorce

   decree or agreement to pay the liability.

(We shall hereinafter refer to the negative factors set forth in section 4.03(2)(a), (b), (d), and (f) of Revenue Procedure 2000-15 as the attribution negative factor, the knowledge or reason to know negative factor, the economic hardship negative factor, and the legal obligation negative factor, respectively.)

We note initially that the parties do not dispute that the knowledge or reason to know negative factor, the economic hardship negative factor, and the legal obligation negative factor set forth in section 4.03(2)(b), (d), and (f), respectively, of Revenue Procedure 2000-15 are the opposites of the knowledge or reason to know positive factor, the economic hardship positive factor, and the legal obligation positive factor set forth in section 4.03(1)(d), (b), and (e), respectively, of that revenue procedure. We also note that the parties do not dispute that the attribution negative factor set forth in section 4.03(2)(a) of Revenue Procedure 2000-15 is essentially the opposite of the attribution positive factor set forth in section 4.03(1)(f) of that revenue procedure. Revenue Procedure 2000-15 are present in the instant case. On the instant record, we further find that petitioner has failed to carry her burden of establishing that the knowledge or reason to know negative factor and the economic hardship negative factor set forth in section 4.03(2)(b) and (d), respectively, of that revenue procedure are not present in the instant case.

With respect to the attribution negative factor set forth in section 4.03(2)(a) of Revenue Procedure 2000-15, we have found above that petitioner has failed to carry her burden of establishing that the unpaid 1993 liability is solely attributable to Mr. Castle. However, respondent concedes that a significant portion of that liability is attributable to Mr. Castle. On the record before us, we find that a significant portion of the unpaid 1993 liability is not attributable to petitioner.

With respect to the legal obligation negative factor set forth in section 4.03(2)(f) of Revenue Procedure 2000-15, we have found above that petitioner has failed to carry her burden of establishing that Mr. Castle had a legal obligation pursuant to the property settlement agreement to pay the unpaid 1993 liability. However, the property settlement agreement does not establish that petitioner had a legal obligation to pay that liability. On the record before us, we find that petitioner did not have a legal obligation under the property settlement agreement to pay the unpaid 1993 liability.

With respect to the negative factor set forth in section 4.03(2)(c) of Revenue Procedure 2000-15 (i.e., the requesting spouse has significantly benefited from the unpaid liability), petitioner contends that that factor is not present in this case because she "received no significant assets or support from Mr. Castle." In support of that contention, petitioner asserts that when she divorced Mr. Castle "She left with her and her son's personal belongings and clothing." The terms of the property settlement agreement do not contradict that assertion. However, petitioner and Mr. Castle signed that agreement approximately 5 years after the taxable year at issue and 2 years after they filed the 1993 joint return. We conclude that petitioner's assertion that when she divorced Mr. Castle she took from her marriage to him only "her and her son's personal belongings and clothing" is not determinative of whether she significantly benefited from the unpaid 1993 liability. Petitioner did not proffer any other evidence to show that she did not significantly benefit from the unpaid 1993 liability. On the record before us, we find that petitioner has failed to carry her burden of establishing that the negative factor set forth in section 4.03(2)(c) of Revenue Procedure 2000-15 is not present in the instant case.

With respect to the negative factor set forth in section 4.03(2)(e) of Revenue Procedure 2000-15 (i.e., the requesting spouse has not made a good faith effort to comply with the tax laws in the taxable years following the year to which the request for relief relates), respondent points to the fact that petitioner did not timely file petitioner's 1994 return as an indication that she did not make a good faith effort to comply with the tax laws in at least 1 taxable year following the taxable year to which petitioner's request for relief related. Park v. Commissioner, 25 F.3d 1289">25 F.3d 1289, 1299 (5th Cir. 1994), affg. T.C. Memo 1993-252">T.C. Memo 1993-252. Petitioner gave no explanation as to why she filed petitioner's 1994 return more than 1 year past the due date for filing that return. On the record before us, we find that petitioner has failed to carry her burden of establishing that the negative factor set forth in section 4.03(2)(e) of Revenue Procedure 2000-15 is not present in the instant case.

On the record before us, we find that petitioner has failed to carry her burden of establishing any other factors that weigh in favor of granting relief under section 6015(f) and that are not set forth in sections 4.02(1) and 4.03(1) of Revenue Procedure 2000-15.

Based upon our examination of the entire record before us, we find that petitioner has failed to carry her burden of showing that respondent abused respondent's discretion in denying her relief under section 6015(f) with respect to the unpaid 1993 liability.

We have considered all of petitioner's arguments and contentions which are not discussed herein, and we find them to be without merit and/or irrelevant.

To reflect the foregoing,

Decision will be entered for respondent.

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Footnotes

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

• 2. At a time not disclosed by the record, petitioner and Mr. Castle applied for and received an automatic extension of time until Aug. 15, 1994, within which to file the 1993 joint return.↩

• 3. The record does not disclose whether petitioner filed that return jointly with Mr. Castle.↩

• 4. Respondent credited $ 2,344 of withholding shown in the 1993 joint return against the tax assessed.↩

• 5. The Court's jurisdiction in this case is dependent upon sec. 6015(e)(1). See Ewing v. Commissioner, 2002 U.S. Tax Ct. LEXIS 30">2002 U.S. Tax Ct. LEXIS 30, 118 T.C. 494">118 T.C. 494,     (2002); Fernandez v. Commissioner, 114 T.C. 324">114 T.C. 324, 330-331 (2000); Butler v. Commissioner, 114 T.C. 276">114 T.C. 276, 289-290↩ (2000).

• 6. In this connection, petitioner testified as follows regarding the circumstances surrounding her signing of the 1993 joint return:

     I [petitioner] was at work and Mr. Castle called me and said

     that I had to meet him at the accountant's immediately, to get

     there as quickly as possible, that I had to sign this return,

     that they were closing. So I ran in the door. It was a small

     firm. They laid the sheet in front of me. I signed the paper,

     they stuck it in an envelope, and we left.↩

• 7. Moreover, by signing the 1993 joint return petitioner is charged with constructive knowledge of, inter alia, the tax due shown in that return. See Park v. Commissioner, 25 F.3d 1289">25 F.3d 1289, 1299 (5th Cir. 1994), affg. T.C. Memo 1993-252">T.C. Memo 1993-252; see also Hayman v. Commissioner, 992 F.2d 1256">992 F.2d 1256, 1262 (2d Cir. 1993), affg. T.C. Memo 1992-228">T.C. Memo 1992-228↩.

• 8. In determining whether a requesting spouse will suffer economic hardship, sec. 4.02(1)(c) of Revenue Procedure 2000-15 requires us to rely on rules similar to those provided in sec. 301.6343-1(b)(4), Proced. & Admin. Regs. Sec. 301.6343-1(b)(4)(i), Proced. & Admin. Regs., generally provides that an individual suffers an economic hardship if the individual is unable to pay his or her reasonable basic living expenses. Sec. 301.6343-1(b)(4)(ii), Proced. & Admin. Regs., provides in pertinent part:

       (ii) Information from taxpayer. In determining a

     reasonable amount for basic living expenses the director will

     consider any information provided by the taxpayer including --

       (A) The taxpayer's age, employment status and history,

     ability to earn, number of dependents, * * *;

       (B) The amount reasonably necessary for food, clothing,

     housing * * *, medical expenses * * *, transportation, current

     tax payments * * *;

       (C) The cost of living in the geographic area in which the

     taxpayer resides;

       (D) The amount of property exempt from levy which is

     available to pay the taxpayer's expenses;

       (E) Any extraordinary circumstances such as special

     education expenses, a medical catastrophe, or natural disaster;

     and

       (F) Any other factor that the taxpayer claims bears on

     economic hardship and brings to the attention of the director.↩

• 9. At trial, petitioner testified that she has a son who was a minor during at least some part of petitioner's marriage to Mr. Castle. Petitioner proffered no evidence to establish at relevant times her son's age, whether he was her dependent, and the amount that she spent with respect to him for basic living expenses.↩

• 10. Although we do not believe that those two factors are exactly opposite because the attribution negative factor does not contain the word "solely" that appears in the attribution positive factor, we conclude that respondent's use of the word "solely" in describing the attribution positive factor but not in describing the attribution negative factor does not affect our findings and conclusions with respect to those factors in the instant case.↩