Sydney Ann Chaney Thomas

United States Tax Court
160 T.C. No. 4SYDNEY ANN CHANEY THOMAS,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 12982-20. Filed February 13, 2023.
—————
P and her spouse H filed joint federal income tax
returns for 2012, 2013, and 2014, but did not pay the full
amounts of tax shown on those returns. After H’s death, P
sought relief from joint and several liability pursuant to
I.R.C. § 6015(f). R denied P’s request, and P petitioned our
Court seeking a determination under I.R.C. § 6015(e).
At trial, R proposed to introduce into evidence
certain posts from P’s personal blog that are relevant to the
ultimate disposition of this case. The posts were not part
of the administrative record; R learned of them only after
P filed her Petition. P objected to the admission of the
posts. The Court took P’s objection under advisement and,
by subsequent Order, admitted the blog posts in full
without prejudice to either party’s ability to file a motion
to strike.
After trial, P filed a Motion to Strike the blog posts
that predated R’s denial of P’s request, on the ground that
they were not “newly discovered or previously unavailable
evidence” as contemplated by I.R.C. § 6015(e)(7)(B). R
opposed the Motion arguing that the blog posts are in fact
“newly discovered” and “previously unavailable evidence”
under I.R.C. § 6015(e)(7)(B).
Served 02/13/23
2
Held: The posts from P’s personal blog are “newly
discovered” evidence within the meaning of I.R.C.
§ 6015(e)(7)(B) and as such were properly admitted.
Held, further, P’s Motion will be denied.
—————
Megan L. Brackney, for petitioner.
Julie V. Skeen and Sharon Ortega, for respondent.
OPINION
TORO, Judge: This case arises under section 6015. 1 Now before
the Court is petitioner Sydney Ann Chaney Thomas’s Motion to Strike
portions of an Exhibit the Commissioner of Internal Revenue offered at
trial. The Motion requires us to confront an issue of first impression
concerning the meaning of section 6015(e)(7). After considering the text,
structure, and history of section 6015(e)(7), we will deny the Motion.
Background
The following facts are derived from the parties’ pleadings and
Motion papers and relevant Exhibits. They are stated solely for the
purpose of ruling on the Motion before us and not as findings of fact in
this case. See Rowen v. Commissioner, 156 T.C. 101, 103 (2021).
Ms. Thomas and her husband, Tracy A. Thomas, filed joint federal
income tax returns for the years 2012, 2013, and 2014. Some of the tax
shown as due on those returns remains unpaid.
Mr. Thomas died in 2016. After his death, Ms. Thomas asked the
Internal Revenue Service for relief from the unpaid joint and several
liabilities for 2012, 2013, and 2014 pursuant to section 6015(f). The IRS
denied that request on September 8, 2020. On November 9, 2020,
Ms. Thomas petitioned our Court pursuant to section 6015(e) to
1 Unless otherwise indicated, all statutory references are to the Internal
Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all regulation
references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all
relevant times.
3
determine the appropriate relief available to her under section 6015(f).
Ms. Thomas resided in California when she filed her Petition.
Because both parties wanted the Court to consider testimony and
other evidence that was not part of the administrative record, we tried
the case in San Francisco on April 4, 2022. At the trial, the
Commissioner proposed to introduce into evidence Exhibit 13–R,
consisting of a series of posts from Ms. Thomas’s personal blog. The first
post included in the Exhibit is dated November 2, 2016, and the final
post is dated January 5, 2022. The contents of the posts are relevant
because they reflect information about Ms. Thomas’s assets, lifestyle,
and business, as well as her relationship with Mr. Thomas. See Fed. R.
Evid. 401. Ms. Thomas discussed the blog during her direct testimony,
and, although the Commissioner did not directly question Ms. Thomas
about specific blog posts during cross-examination, some of the
Commissioner’s cross-examination questions relied on matters
addressed in the blog posts.
Ms. Thomas, who represented herself during the trial, expressed
some concerns about the admissibility of the blog posts. The Court
construed Ms. Thomas’s concerns as an objection to admitting
Exhibit 13–R and took the issue under advisement.
On April 26, 2022, the Court issued an Order addressing
Exhibit 13–R. The Court concluded “that it would advance the orderly
resolution of this case to treat [Exhibit 13–R and certain other exhibits
with respect to which there is no longer a dispute] as admitted in full,”
“without prejudice to the parties’ ability to file motions to have an
exhibit stricken from the record.” Order 2. The Court noted that, “given
the novelty and complexity of certain issues [relating to the
admissibility of Exhibit 13–R and the other exhibits], Ms. Thomas’s
presentation on these issues may benefit from the assistance of counsel
(pro bono or otherwise).” Id.On May 31, 2022, Megan L. Brackney (acting pro bono) entered
an appearance for Ms. Thomas. A request to extend the time for
responding to the Court’s April 26 Order followed the next day. The
Court granted an extension. On July 1, 2022, Ms. Thomas filed the
Motion to Strike now before us.
On July 25, 2022, the Center for Taxpayer Rights, the Community
Tax Law Project, the UC Hastings Low-Income Taxpayer Clinic, and the
4
Villanova Federal Tax Clinic (collectively, amici) moved for leave to file
a brief, which the Court granted.
On September 12, 2022, the Commissioner filed an Objection to
the Petitioner’s Motion to Strike. On October 12, the Commissioner
responded to the amici’s brief. Also on October 12, Ms. Thomas replied
to the Commissioner’s Objection. On November 10, the Commissioner
responded to Ms. Thomas’s Reply.
Discussion
I. Relevant Legal Principles
Married couples may elect to file a joint federal income tax return
for a taxable year. I.R.C. § 6013. When they do, their tax for that year
is based on their aggregate income and deductions, and their liability
for any tax due is joint and several. I.R.C. § 6013(d)(3); Alt v.
Commissioner, 119 T.C. 306, 311 (2002), aff’d, 101 F. App’x 34 (6th Cir.
2004). This means that the Commissioner is free to collect from either
spouse the entire amount of tax due for that year, regardless of how
much income the particular spouse earned or what that spouse’s tax
liability would have been if the spouse had filed a separate return
reflecting only that spouse’s income and deductions.
A spouse who has made a joint return may seek relief from joint
and several liability under the procedures established in section 6015.
As relevant to this case, subject to certain conditions that need not
detain us, section 6015(f) permits the IRS to relieve a requesting spouse
of some or all of the outstanding joint liability if, taking into account all
of the facts and circumstances, it is inequitable to hold that spouse liable
for any unpaid tax. A requesting spouse who is dissatisfied with the
IRS’s decision about the requested relief “may petition [our Court] . . . to
determine the appropriate relief available to the individual under
[section 6015].” I.R.C. § 6015(e)(1)(A).
In 2019, Congress amended the statutory provision that governs
our determination under section 6015(e) by adding a new paragraph (7).
See Taxpayer First Act, Pub. L. No. 116-25, § 1203(a)(1), 133 Stat. 981,
988 (2019). That paragraph provides as follows:
(7) Standard and scope of review.—Any review of a
determination made under this section shall be reviewed
de novo by the Tax Court and shall be based upon—
5
(A) the administrative record established at
the time of the determination, and
(B) any additional newly discovered or
previously unavailable evidence.
I.R.C. § 6015(e)(7). The Taxpayer First Act, § 1203(b), 133 Stat. at 988,
provides that “[t]he amendments made by this section shall apply to
petitions or requests filed or pending on or after the date of the
enactment of this Act [i.e., July 1, 2019].” See Sutherland v.
Commissioner, 155 T.C. 95, 104 (2020) (concluding that paragraph (7)
applies to petitions filed with the Court on or after July 1, 2019).
Paragraph (7) applies here because Ms. Thomas’s Petition was
filed on November 9, 2020. Thus, we must review the IRS’s
determination to deny Ms. Thomas’s request for relief de novo “based
upon . . . the administrative record established at the time of the
determination” and “any additional newly discovered or previously
unavailable evidence.” 2 I.R.C. § 6015(e)(7).
The parties agree that Ms. Thomas’s blog posts are not part of the
administrative record and that they are relevant to the disposition of
the case. Given their relevance, we must determine whether we should
strike the blog posts pursuant to section 6015(e)(7), and therefore we
consider for the first time the meaning of the phrase “any additional
newly discovered . . . evidence.” As we explain below, we conclude that
the phrase should be interpreted according to its ordinary meaning and
that the blog posts will remain in the record. But first we describe
briefly the positions taken by the parties and amici.
II. Parties’ Positions
A. Ms. Thomas’s Arguments
Ms. Thomas seeks to strike pages 1–74 and 97–131 of
Exhibit 13–R, covering blog posts that existed before September 8, 2020,
the date on which the Commissioner denied Ms. Thomas’s request for
relief. In Ms. Thomas’s view, “the pre-September 8, 2020, blog posts
were publicly available, and Respondent could have found them through
2 Neither section 6015 nor the regulations thereunder define the
administrative record for purposes of an innocent spouse determination. Cf. Treas.
Reg. § 301.7623-3(e)(1) and (2) (describing the administrative record for a
whistleblower determination); Treas. Reg. § 301.6330-1(f)(2), Q&A-F4 (describing the
administrative record for a collection due process hearing).
6
an internet search of Petitioner’s name.” Pet’r’s Mot. to Strike ¶ 15.
Thus, they were not “previously unavailable.” Id. ¶ 16.
Ms. Thomas asks the Court to conclude that the posts are also not
“newly discovered.” Ms. Thomas observes that the Taxpayer First Act
“does not define [the term ‘newly discovered’] and the legislative history
is silent in this regard.” Id. ¶ 19. Ms. Thomas contends that the Court
should interpret the term by reference to Rule 60(b)(2) of the Federal
Rules of Civil Procedure (FRCP 60(b)(2)). That Rule provides that “[o]n
motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding” based on
“newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b).”
FRCP 60(b)(2) (emphasis added).
Ms. Thomas acknowledges that the ordinary meaning of
“discovered” is “to obtain sight or knowledge of for the first time,” Pet’r’s
Mot. to Strike ¶ 21, but maintains that
[a]pplying the ordinary meaning would set a very low bar
in determining whether evidence is “newly discovered,” as
it would allow [the Commissioner] to freely reopen the
record and submit any evidence at trial just on a showing
that [he] did not previously know about it without any
consideration of [the Commissioner’s] attempt to obtain the
evidence sooner. It is unlikely that this is what Congress
intended when enacting the [Taxpayer First Act].
Id. ¶ 22.
In Ms. Thomas’s view, the standard established by FRCP 60(b)(2)
“provides an administrable standard for admitting newly discovered
evidence, by requiring a showing that the party seeking admission has
exercised reasonable diligence.” Id. ¶ 23.
Applying this standard, Ms. Thomas contends that the
Commissioner did not exercise reasonable diligence here.
B. The Commissioner’s Arguments
The Commissioner maintains that none of Exhibit 13–R should
be stricken. In his view, all of Ms. Thomas’s blog posts were “newly
7
discovered” by the Commissioner after the administrative proceedings
concluded. 3
The Commissioner urges us to give the term “newly discovered”
its ordinary meaning. And the Commissioner contends that he prevails
under the ordinary meaning of the phrase because he did not become
aware of the blog materials until after Ms. Thomas brought this case.
In the Commissioner’s view, several considerations favor his
reading of the statute.
First, as the Commissioner sees it, the IRS’s role in the
administrative review process for resolving claims for relief under
section 6015 is that of an arbiter, not an advocate. Thus, the IRS does
not have a duty to gather evidence to defeat a request for relief.
Second, because the taxpayer has the burden at the
administrative stage to establish that relief is appropriate, if the IRS
concludes that the taxpayer has failed to meet that burden, it would be
a waste of resources for the IRS to gather additional evidence simply to
refute an inadequate claim.
Third, because the relationship between the IRS and a requesting
spouse does not become adversarial until a proceeding is instituted in
this Court, any responsibility for the IRS to begin collecting additional
information should not arise until then.
Fourth, the statutory requirement that our decision be based on
the “the administrative record established at the time of the
determination,” I.R.C. § 6015(e)(7)(A), represents an effort to ensure
that requesting spouses exhaust their administrative remedies before
coming to our Court. Since no exhaustion requirement applies to the
Commissioner, he contends that he should be permitted to look for
additional evidence once the case is in court rather than being required
to undertake such efforts earlier on pain of losing the right to do so.
Moreover, since the evidence at issue here was within the requesting
spouse’s control, that factor weighs in favor of the evidence being left in
3 The Commissioner further notes that the standard in section 6015(e)(7)(B) is
disjunctive and maintains that the blog posts also qualify as “previously unavailable
evidence.” See United States v. Nishiie, 996 F.3d 1013, 1023 (9th Cir. 2021) (“As a
general rule, the use of a disjunctive in a statute indicates alternatives and requires
that they be treated separately.” (quoting Azure v. Morton, 514 F.2d 897, 900 (9th Cir.
1975))). However, in view of our disposition, we need not address this point further.
8
the record. Taxpayers, the Commissioner maintains, should not be
incentivized to hide information from the IRS during the administrative
phase.
The Commissioner also contends that the standard reflected in
FRCP 60(b)(2) is inappropriate here for three reasons. First, the text of
section 6015(e)(7)(B) is different from the text of FRCP 60(b)(2).
Specifically, section 6015(e)(7)(B) does not contain the “additional
language qualifying” the type of newly discovered evidence that counts
for purposes of the Rule. Resp’t’s Obj. to Mot. to Strike ¶ 35. According
to the Commissioner, adding that concept to the statute would “make a
rule out of whole cloth.” Id. Second, the Commissioner contends that
reading “newly discovered” in section 6015(e)(7)(B) to implicitly include
a due diligence requirement would render “previously unavailable” (a
phrase that does not appear in FRCP 60(b)(2)) superfluous. And third,
FRCP 60(b)(2) applies after a trial has taken place and relief is sought
from a final judgment, order, or proceeding. In that context, there “may
be strong considerations of preserving judicial resources when
considering whether new evidence should be considered.” Resp’t’s Obj.
to Mot. to Strike ¶ 38. But those considerations are not present here,
where the administrative proceedings under review did not involve a
trial, the party interested in introducing the evidence did so at the trial
before this Court, and the Court would be deciding the matter de novo.
C. The Amici’s Arguments
The amici “support . . . the position that exceptions to the
administrative record rule of § 6015(e)(7) be applied expansively given
the de novo review the court must conduct, the requesting spouse’s
specific circumstances, and the nature of the IRS’s administrative
procedures.” Amicus Br. 2.
On the question whether FRCP 60(b)(2) and the authorities under
it should be considered in interpreting section 6015(e)(7), the amici
explain that “[w]hile we agree with petitioner that in general the rule
may inform the determination of whether ‘newly discovered evidence’
should be considered in the context of § 6015 cases, the Court should use
a more expansive standard than in the case law applying Fed. R. Civ. P.
60(b)(2).” Amicus Br. 13. Their reasoning goes as follows:
The case law applying and defining the additional factors
of Fed. R. Civ. P. 60(b)(2) is not suitably adaptable to
govern the case in question because the case law addresses
9
whether to accept newly discovered evidence to overturn a
previous opinion or final decision of the court. Applying
this same narrow standard to define “newly discovered
evidence” in § 6015(e)(7)(B) would result in its application
to the skeletal administrative proceedings of the IRS
rather than to prior court proceedings. [T]he IRS’s
administrative procedures [used] in deciding an innocent
spouse case do not afford the same level of procedural
rights for litigants as does a court proceeding. Testimony
is not taken on the record; there is no ability to subpoena
witnesses or documents. The preliminary and final
determinations issued by [the Cincinnati Centralized
Innocent Spouse Operation (“CCISO”)] generally contain
only stock language stating the elements considered,
without reference to specific deficiencies in the requesting
spouse’s legal argument or documentation. Taxpayers,
particularly pro se taxpayers without sufficient legal
knowledge of IRS and court processes, may be unaware of
what additional documents or information would support
their case. Under the IRS’s innocent spouse processing
procedures, CCISO has no requirement to provide a
requesting spouse with documents or information supplied
by the non-requesting spouse at the pre-Appeals stage. See
IRM 25.15.18 (Jan. 15, 2020). To the extent that CCISO
relies on information from a non-requesting spouse to deny
the requesting spouse’s innocent spouse claim, taxpayers
may be unaware of the need to submit additional
documents to rebut that information.
....
A court proceeding may be the first opportunity for the
requesting spouse to learn the complete reason(s) for denial
of relief, because the parties are required to exchange
documents and information before trial, giving the parties
time and notice to supplement their evidence before a trial
or hearing. Thus, in the context of a § 6015 determination,
a reading of the phrase “newly discovered evidence” to
allow submission of additional evidence because the
necessity of this evidence is “newly discovered” by the
taxpayer during pretrial exchanges would better comport
with the Tax Court’s obligation to make a de novo
determination.
10
Id. at 14–16.
The amici also contend that a standard of reasonable diligence
should be applied based on a reasonable person standard and that the
potential influence of domestic violence in innocent spouse cases
warrants special consideration in applying the reasonable diligence
standard.
III. Analysis
The Motion before us presents an issue of first impression
concerning the meaning of section 6015(e)(7). “As in all statutory
construction cases, we begin with the language of the statute.” Barnhart
v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). As the Supreme Court
has explained:
In statutory interpretation disputes, a court’s proper
starting point lies in a careful examination of the ordinary
meaning and structure of the law itself. Schindler Elevator
Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011).
Where . . . that examination yields a clear answer, judges
must stop. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
438 (1999).
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019).
And, when the statute does not define a term, “we ask what that term’s
‘ordinary, contemporary, common meaning’ was when Congress
enacted” the relevant provision. Id. at 2362 (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979)).
All agree that section 6015 does not define the phrase “newly
discovered evidence.” We must therefore discern the ordinary meaning
of that phrase in 2019.
A. Ordinary Meaning of “Newly Discovered”
To interpret the phrase “newly discovered evidence,” we begin by
defining the words “newly” and “discovered.” See, e.g., Carcieri v.
Salazar, 555 U.S. 379, 388 (2009) (consulting dictionary definitions to
discern a word’s ordinary meaning at a given time); Rousey v. Jacoway,
544 U.S. 320, 326 (2005) (same); Kraatz & Craig Surveying Inc. v.
Commissioner, 134 T.C. 167, 177 (2010) (same).
11
The word “newly” generally is defined to mean “recently” or
“lately.” Newly, Merriam-Webster, https://www.merriam-webster.com/
dictionary/newly (last visited Feb. 8, 2023); Newly, Webster’s New World
College Dictionary (5th ed. 2016); see also Newly, The American Heritage
Dictionary of the English Language (5th ed. 2016) (“Not long ago;
recently”). And as relevant here, the word “discover” generally means
“to obtain sight or knowledge of for the first time.” Discover, Merriam-
Webster, https://www.merriam-webster.com/dictionary/discover (last
visited Feb. 8, 2023); see also Discover, Webster’s New World College
Dictionary (5th ed. 2016) (“to find out; learn of the existence of; realize”);
Discover, The American Heritage Dictionary of the English Language
(5th ed. 2016) (“to notice or learn, especially by making an effort”).
No alternative definitions have been provided by the parties, nor
do the parties dispute these definitions. We therefore conclude that the
ordinary meaning of “newly discovered” as of 2019 was “recently
obtained sight or knowledge of for the first time.” 4
4 We do not think Congress intended to use the phrase “newly discovered
evidence” in section 6015(e)(7)(B) as a legal term of art. Black’s Law Dictionary defines
“newly discovered evidence” as “[e]vidence existing at the time of a motion or trial but
then unknown to a party, who, upon later discovering it, may assert it as grounds for
reconsideration or a new trial. See Fed. R. Civ. P. 60(b).” Evidence, Black’s Law
Dictionary (11th ed. 2019). That definition contemplates judicial proceedings with
motions or trials. See Motion, Black’s Law Dictionary (11th ed. 2019) (defining the
term “motion” as a “written or oral application requesting a court to make a specified
ruling or order”). Administrative proceedings under section 6015 involve neither. Nor
is the Commissioner a “party” to (that is, a litigant in) those proceedings, although of
course the Commissioner participates in them. See Party, Black’s Law Dictionary
(11th ed. 2019) (defining a “party” as “one by or against whom a lawsuit is brought;
anyone who both is directly interested in a lawsuit and has a right to control the
proceedings, make a defense, or appeal from an adverse judgment; LITIGANT ”). Moreover, the structure of section 6015(e)(7) makes plain that the
newly discovered evidence the statute addresses is determined by reference to what
happened in the administrative proceedings, rather than what happens in the
proceedings conducted in this Court. Thus, we do not think Congress used the phrase
as a term of art. But, even if we were to translate the legal term of art to the context
of section 6015(e)(7)(B) with appropriate modifications, its meaning would be much the
same as the phrase’s ordinary meaning. Namely, the phrase would refer to evidence
existing at the time of the innocent spouse administrative proceeding, but then
unknown to a participant in the proceeding, who, upon later discovering it, offers it as
evidence in our Court. On the facts before us, this standard would yield the same
conclusion we reach by applying the phrase’s ordinary meaning.
12
B. Application to Blog Posts
Applied to this case, the phrase “newly discovered evidence”
encompasses the blog posts that Ms. Thomas seeks to strike. The
Commissioner discovered the posts by searching the internet after
Ms. Thomas filed the Petition upon which this case is based. Resp’t’s
Obj. to Mot. to Strike ¶ 32. There is no evidence that the Commissioner
obtained the blog posts any sooner, and Ms. Thomas makes no argument
to that effect. Therefore, we conclude that pages 1–74 and 97–131 of
Exhibit 13–R are admissible as “newly discovered . . . evidence” for
purposes of this Court’s review of Ms. Thomas’s innocent spouse claim. 5
Ms. Thomas argues that section 6015(e)(7)(B) should be read to
incorporate an additional limitation similar to that in FRCP 60(b)(2). As
relevant here, the Rule states that “the court may relieve a party or its
legal representative from a final judgment, order, or proceeding” on the
basis of “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial.” FRCP
60(b)(2) (emphasis added). Ms. Thomas contends that such a limitation
would render the blog posts inadmissible because, if the Commissioner
had conducted a reasonably diligent search at the time of her
administrative proceeding, he could have discovered them.
We do not agree with Ms. Thomas’s interpretation of the statute.
As used in FRCP 60(b)(2), the reasonable diligence language qualifies
what “newly discovered evidence” courts may review when considering
a motion for a new trial. In other words, the language does not define
the phrase “newly discovered evidence” as Ms. Thomas asserts; rather,
it acts as an additional (and external) limitation on the meaning of that
phrase.
Section 6015(e)(7)(B) contains no such qualifier. Moreover,
FRCP 60(b)(2) was widely known and available as a model when
Congress drafted section 6015(e)(7)(B), but Congress chose different
language. Courts generally assume that such drafting choices are
intentional. See Knight v. Commissioner, 552 U.S. 181, 188 (2008) (“The
fact that [Congress] did not adopt [a] readily available and apparent
alternative strongly supports rejecting [a] reading [that relies on the
rejected alternative text].”); see also Loughrin v. United States, 573 U.S.
5 Our conclusion would be the same if, for example, a requesting spouse were
to seek to introduce into evidence posts from a blog that the nonrequesting spouse
maintained without the requesting spouse’s knowledge and that the requesting spouse
discovered after the IRS had made a determination with respect to the request.
13
351, 358 (2014) (“We have often noted that when ‘Congress includes
particular language in one section of a statute but omits it in another’
. . . this Court ‘presume[s]’ that Congress intended a difference in
meaning.” (quoting Russello v. United States, 464 U.S. 16, 23 (1983)));
Grajales v. Commissioner, 47 F.4th 58, 62 (2d Cir. 2022), aff’g 156 T.C.
55 (2021). Here, Congress did not include a reasonable diligence
standard in section 6015(e)(7)(B) even though FRCP 60(b)(2) was readily
available as a model, and we will respect the omission.
Furthermore, the nearby text in section 6015(e)(7)(B) suggests a
conclusion contrary to the one Ms. Thomas urges. Not only does
section 6015(e)(7)(B) lack a limiting qualifier; it includes an expanding
one, permitting the consideration of “any additional” newly discovered
evidence. As the Supreme Court has observed: “Read naturally, the
word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’” Ali v. Fed. Bureau of Prisons, 552
U.S. 214, 219 (2008) (quoting United States v. Gonzales, 520 U.S. 1, 5
(1997)). Thus, even if the phrase “newly discovered evidence” were by
itself open to a more limited interpretation (and we do not believe it is),
Congress’s use of the phrase “any additional” would counsel against
adopting a limiting interpretation not presented by the text.
Our reading finds additional support in the structure of
section 6015(e)(7), which grants this Court de novo review of innocent
spouse determinations. 6 A de novo standard of review suggests that we
should construe our authority to consider information outside the
administrative record broadly rather than narrowly, because limiting
the evidence we can consider inhibits our ability to evaluate a case’s
merits. See, e.g., Wilson v. Commissioner, 705 F.3d at 993 (“The Tax
Court must be able to compile a de novo record if it is to consider ‘all the
facts and circumstances’ when deciding whether a taxpayer is entitled
to relief from joint liability under § 6015(f) . . . .”). For this reason, in
our cases a de novo standard of review typically goes hand-in-hand with
a fresh record, see Ax v. Commissioner, 146 T.C. 153, 161 (2016) (“The
6For background on the evolution of the scope and standard of review for cases
under section 6015, see Porter v. Commissioner, 132 T.C. 203 (2009), and Wilson v.
Commissioner, 705 F.3d 980, 982 (9th Cir. 2013), aff’g T.C. Memo. 2010-134. See also
H.R. Rep. No. 116-39, pt. 1, at 38–40 (2019) (discussing authorities), as reprinted in
2020 U.S.C.C.A.N. 169, 184–86.
In 2019, Congress directly addressed these issues in the Taxpayer First Act,
which confirmed generally that a determination under section 6015 “shall be reviewed
de novo by the Tax Court.” Taxpayer First Act § 1203(a)(1), 133 Stat. at 988 (codified
at § 6015(e)(7)).
14
Internal Revenue Code . . . reflects Congress’s intention that the Tax
Court will decide deficiency cases not by reviewing the agency’s
determinations for abuses of discretion but by deciding issues according
to the evidence.”), while cases where we are limited to the
administrative record more commonly are reviewed for abuse of
discretion, Kasper v. Commissioner, 150 T.C. 8, 20, 22 (2018)
(articulating the standard and scope of review for whistleblower cases).
Accordingly, that Congress chose a de novo standard of review in
section 6015(e) supports our conclusion that evidence unknown to a
participant in the innocent spouse administrative proceeding should be
admissible if that participant (now a party in our Court) offers it in the
proceedings before us.
Finally, section 6015(e)(7)(B) applies in a context different from
that of FRCP 60(b)(2). Most notably, parties to a motion for relief from
a judgment or order under FRCP 60(b)(2) have had a prior opportunity
to conduct discovery, introduce evidence at trial, and prosecute their
case before a court. In this situation, a reasonable diligence requirement
makes perfect sense, because the parties have already had their chance
to persuade the court. But in the context of section 6015(e)(7), the Court
considers a case for the first time following a relatively limited
administrative proceeding. See, e.g., Wilson v. Commissioner, 705 F.3d
at 990 (noting that, in an innocent spouse administrative proceeding,
“[t]here is no formal administrative procedure . . . at which the taxpayer
may present her case before an administrative law judge” and “[a]t no
time during the process is the taxpayer afforded the right to conduct
discovery, present live testimony under oath, subpoena witnesses for
trial, or conduct cross-examination”). The more permissive rule in
section 6015(e)(7) is appropriate in these circumstances. 7
Our holding here is generally consistent with the amici’s view
that “exceptions to the administrative record rule of § 6015(e)(7) [should]
be applied expansively given the de novo review the court must conduct,
the requesting spouse’s specific circumstances, and the nature of the
IRS’s administrative procedures.” Amicus Br. 2. And as we have
already observed, see note 5 above, the rule we adopt today would apply
7 As the Commissioner notes, adopting Ms. Thomas’s interpretation of
section 6015(e)(7) would effectively preclude him from offering evidence in our Court
that was discoverable (but not actually discovered) during a prior innocent spouse
administrative proceeding. Reviewers in the IRS’s innocent spouse program might
therefore need to gather evidence beyond that required to actually dispose of a request,
in case the additional evidence is needed in a future hypothetical judicial proceeding.
Such a regime would undermine the efficient administration of innocent spouse claims.
15
similarly to evidence that is newly discovered by the requesting spouse
or the Commissioner. To the extent the amici raise additional points
that go beyond the facts of this case, we need not address them here, and
we leave their resolution for another day.
IV. Conclusion
In short, the blog posts in pages 1–74 and 97–131 of Exhibit 13–R
are admissible because they constitute “newly discovered . . . evidence”
within the meaning of section 6015(e)(7)(B). We will therefore deny Ms.
Thomas’s Motion to Strike.
To reflect the foregoing,
An appropriate order will be issued.
Reviewed by the Court.
KERRIGAN, FOLEY, GALE, PARIS, MORRISON, BUCH,
NEGA, PUGH, ASHFORD, URDA, COPELAND, JONES, GREAVES,
MARSHALL, and WEILER, JJ., agree with this opinion of the Court.
16
BUCH, J., concurring: I join, without reservation, the opinion of
the Court. I write separately merely to note that, although our holding
is faithful to the words of the statute Congress enacted, those words may
not have captured what Congress intended. I will explain this through
two nearly identical examples involving hypothetical taxpayers, Adams
and Baker.
Ms. Adams
Ms. Adams claims to have suffered abuse during her marriage.
On the rare occasion when she mustered the courage to ask her husband
about the family’s financial affairs, he would abuse her verbally or
physically.
Ms. Adams actively participated in social media. She often posted
pictures of her family’s cheery and happy occasions. She posted pictures
of herself and her husband on vacation. On Father’s Day, she wrote a
tribute to her husband, the father of her children.
After Ms. Adams and her husband divorced, the Commissioner
discovered that the couple had underreported their income. Ms. Adams
requested innocent spouse relief and alleged, among other things, that
she was abused. During the administrative proceedings, neither Ms.
Adams nor the Commissioner presented the social media posts.
Ultimately, the Commissioner issued a final determination denying
relief.
Ms. Adams files a petition in our Court challenging the
Commissioner’s denial of relief. At trial, the Commissioner seeks to
introduce Ms. Adams’s social media posts.
Ms. Baker
Ms. Baker claims to have suffered abuse during her marriage. On
the rare occasion when she mustered the courage to ask her husband
about the family’s financial affairs, he would abuse her verbally or
physically.
Ms. Baker actively participated in social media. She participated
in an online forum for abused spouses. She posted pictures of bruises
and wrote of the abuse she suffered.
After Ms. Baker and her husband divorced, the Commissioner
discovered that the couple had underreported their income. Ms. Baker
17
requested innocent spouse relief and alleged, among other things, that
she was abused. During the administrative proceedings, neither Ms.
Baker nor the Commissioner presented the social media posts.
Ultimately, the Commissioner issued a final determination denying
relief.
Ms. Baker files a petition in our Court challenging the
Commissioner’s denial of relief. At trial, Ms. Baker seeks to introduce
her own social media posts.
Applying Our Holding to Ms. Adams and to Ms. Baker
These two examples highlight how the admission of newly
discovered or previously unavailable evidence may be a one-way street
benefiting the Commissioner. The Adams example is similar to this case,
and the opinion of the Court rightly concludes that the Commissioner
may introduce the social media posts. The Commissioner did not create
the social media posts, and he was under no obligation during the
administrative proceedings to find them. If he finds them after the
administrative proceedings conclude, they fit within the definition of
newly discovered evidence.
Compare this with Ms. Baker’s situation. Her social media posts
would provide evidence of abuse. But because she created the social
media posts, it may be difficult for her to establish that this potential
evidence is newly discovered or previously unavailable to her. As a
result, she may be precluded by section 6015(e)(7) from introducing this
evidence.
This issue is not limited to social media posts. There is a vast
array of evidence that could potentially be helpful to a putative innocent
spouse yet might be excluded because it was neither newly discovered
by nor previously unavailable to that putative innocent spouse.
Examples might include medical records or police reports of abuse.
Likewise, this could include financial records showing a putative
innocent spouse’s dire financial situation. In each instance, evidence
that is helpful to and offered by the putative innocent spouse at trial
might be barred by section 6015(e)(7) because it was not presented in
the administrative proceedings. 1
1 I phrase these examples in terms of what “may” or “might” result. A putative
innocent spouse may be able to establish that the documents suggested in these
18
Unintended Consequences
It is not clear that Congress intended to create the possibility of
this result. Section 6015(e)(7) was added by the Taxpayer First Act as
part of Title I, which bears the heading “Putting Taxpayers First.”
Taxpayer First Act, Pub. L. No. 116-25, § 1203, 133 Stat. 981, 988
(2019). 2 This provision was meant to resolve conflicting decisions
amongst courts in innocent spouse cases, with some courts holding that
an abuse of discretion standard applied while other courts held that the
more taxpayer favorable de novo standard of review applied. Staff of J.
Comm. on Tax’n, 116th Cong., General Explanation of Tax Legislation
Enacted in the 116th Congress, JCS-1-22, at 11–13 (J. Comm. Print
2022). With the addition of section 6015(e)(7), Congress expressly
adopted the more taxpayer favorable de novo standard of review. But it
limited the scope of the review to the administrative record, except for
newly discovered or previously unavailable evidence. In doing so,
Congress may have greatly reduced the putative innocent spouse’s
ability to bolster his or her case as part of that de novo review. See Steve
Milgrom, Innocent Spouse Relief and the Administrative Record,
Procedurally Taxing (July 9, 2019), https://procedurallytaxing.com/
innocent-spouse-relief-and-the-administrative-record/. As a result,
Congress may have made it harder for a putative innocent spouse to
challenge determinations denying relief. This would seem to run
contrary to the stated purpose of the Act, to put taxpayers first.
ASHFORD and COPELAND, JJ., agree with this concurring
opinion.
examples were not available at the time of the administrative proceeding. Any decision
on these issues must be based on the facts presented to the Court.
2 In their treatise, Justice Scalia and Bryan Garner state that the title of and
headings within an act are permissible indicators of meaning, “[b]ut a title or heading
should never be allowed to override the plain words of a text.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 222 (2012).