Michael Vetrano and Patricia Vetrano v. Commissioner

116 T.C. No. 21UNITED STATES TAX COURT
MICHAEL VETRANO AND PATRICIA VETRANO, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent*
Docket No. 8996-97. Filed April 25, 2001.
In the petition, petitioners alleged that
wife, W, was entitled to relief from joint and
several liability under former sec. 6013(e),
I.R.C., with respect to their joint return for
1993. After trial, sec. 6015, I.R.C., was
enacted into law and former sec. 6013(e), I.R.C.,
was repealed. W elected relief under subsections
(b) and (c) of sec. 6015, I.R.C., in petitioners'
posttrial brief. Thereafter, the Court issued
its first opinion which decided all of the other
issues in the case but reserved W's qualification
for relief from joint and several liability in
order to give W an opportunity to make a record
to support her elections under subsections (b)
and (c) of sec. 6015, I.R.C. Subsequently, W
requested leave to withdraw, without prejudice,
her elections for relief under sec. 6015(b) and
*
This opinion supplements our opinion in Vetrano v.
Commissioner, T.C. Memo. 2000-128.
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(c), I.R.C., and chose not to present any
additional evidence regarding those issues.
R contends that W should not be permitted to
withdraw, without prejudice, her elections under
sec. 6015(b) and (c), I.R.C., and that W is not
entitled to relief under either of those
provisions.
1. Held: W's request to withdraw, without
prejudice, the issue of her qualification for
relief under subsections (b) and (c) of sec.
6015, I.R.C., is denied. W placed those matters
in issue in this case. Sec. 6015(g)(2), I.R.C.,
prescribes the res judicata effect that a final
decision in this case will have with respect to a
later election by W under sec. 6015, I.R.C., and
precludes granting W's request to withdraw her
elections without prejudice.
2. Held, further, W does not qualify for
relief under subsection (b) of sec. 6015, I.R.C.,
nor has she shown that she meets the requirements
of sec. 6015(c)(3)(A)(i), I.R.C., in order to be
entitled to elect relief under sec. 6015(c),
I.R.C.
John R. Crayton, for petitioners.
Keith L. Gorman and John E. Becker, Jr., for
respondent.
SUPPLEMENTAL OPINION
WHALEN, Judge: Our Memorandum Findings of Fact and
Opinion of this case was issued as T.C. Memo. 2000-128on April 10, 2000 (Vetrano I). In that opinion, we found
that Mr. Vetrano had earned unreported net income in 1991,
1992, and 1993, from his business of dealing in used
automobile parts, consisting primarily of payments from a
company referred to as BMAP, that he is subject to self-
employment tax on the unreported net income of his used
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automobile parts business, that the returns at issue are
subject to the fraud penalty under section 6663, and that
some part of the underpayment for 1993 is due to the fraud
of Mrs. Vetrano. We also sustained respondent's
determination that petitioners had received unreported
payments from four entities during the years in issue,
including a payment of $1,035 from Camden City Probation
in 1993.
In Vetrano I, we did not consider Mrs. Vetrano's
claim for relief from joint and several liability under
former section 6013(e) and section 6015 of the Internal
Revenue Code. We reserved those issues in order to give
Mrs. Vetrano an opportunity to make a record to support her
claim of eligibility for relief under section 6015, in view
of the fact that section 6015 was enacted after the trial
of this case. See Internal Revenue Service Restructuring
and Reform Act of 1998, Pub. L. 105-206, sec. 3201(a), 112
Stat. 734 (hereinafter the Act is referred to as RRA 1998).
Unless stated otherwise in this opinion, all section
references, other than references to section 6015, are
references to the Internal Revenue Code as in effect during
1993.
We must now decide three issues in order to complete
our opinion in this case. The first issue is whether to
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grant Mrs. Vetrano's request to withdraw from the case,
without prejudice, the issue of Mrs. Vetrano's eligibility
for relief from joint and several liability under former
section 6013(e) and section 6015. The second issue is
whether Mrs. Vetrano is eligible for relief under section
6015(b), and the third issue is whether Mrs. Vetrano is
eligible for relief under section 6015(c), as of the date
of her election or as of some later date.
Background
Petitioners in this case make the following
allegation: "For the tax year 1993 Mrs. Vetrano asserts
the protection afforded to her * * * under the provisions
of 26 U.S.C. §6013(e)." Respondent denied that allegation
in the answer. Sometime later, respondent served a request
for admissions on petitioners. Included in that request is
the following specification: "Petitioner-wife is not
entitled to * * * [such] relief." Petitioners denied that
specification in their response. The case proceeded to
trial on the basis of those pleadings.
In petitioners' posttrial brief, petitioners argued in
detail that "Mrs. Vetrano qualifies for * * * relief under
26 U.S.C. §6013(e)". In addition, Mrs. Vetrano elected and
asserted that she is entitled to relief from joint and
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several liability under section 6015 with respect to
petitioners' 1993 return.
In reply, respondent construed Mrs. Vetrano's
posttrial brief as an election for relief under both
subsections (b) and (c) of section 6015. As to relief
under section 6015(b), respondent noted that petitioners
bear the burden of proving that Mrs. Vetrano did not know,
and had no reason to know of the payments by BMAP to her
husband, and respondent argued that the record contains
ample evidence to prove that Mrs. Vetrano knew of her
husband's unreported income from BMAP. Respondent also
argued that it would not be inequitable to hold
Mrs. Vetrano liable for the deficiency in tax for 1993.
Accordingly, respondent "determined that Mrs. Vetrano is
not eligible to elect application of §6015(b) and therefore
denies her claim to limit her liability under that
section."
As to relief under section 6015(c), respondent noted
that petitioners had not shown that Mrs. Vetrano met a
threshold requirement for eligibility, set forth in section
6015(c)(3)(A)(i), to elect section 6015(c) relief.
Respondent's brief states as follows:
Mrs. Vetrano made her election on page 12
of petitioners' brief. A copy of the divorce
petition filed on August 7, 1998 was attached
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to that brief. The brief also contains a
statement that under I.R.C. §6015(c)(3)(A)(i)
(I), Mrs. Vetrano is "legally separated from"
Mr. Vetrano.
* * * * * * *
Petitioner based her eligibility upon being
legally separated from Michael Vetrano.
§6015(c)(3)(A)(i)(I). However, the mere filing
of a divorce petition does not constitute legal
separation. See Morrison v. Morrison, 122 N.J.
Super. 277, 300 [sic]; 290 [sic] A.2d 741 [sic]
(Ch. 1972). Nor has she supplied any evidence
to support the statement in the brief that she
was so legally separated. For that reason, she
was not eligible to make the election.
Respondent also argued that Mrs. Vetrano is not eligible
to elect relief under section 6015(c) because Mr. Vetrano
transferred assets to her as part of a fraudulent scheme
to avoid tax and, pursuant to section 6015(c)(3)(A)(ii),
an election under section 6015(c) by either of them is
invalid. Respondent raised other issues to defeat or to
limit relief under section 6015(c), including the
contention that Mrs. Vetrano had actual knowledge of the
items giving rise to the deficiency with the result that
her election under section 6015(c) does not apply to any
part of the deficiency, see sec. 6015(c)(3)(C), the
contention that her share of the deficiency must be
increased by the value of any "disqualified asset" that was
transferred to her, sec. 6015(c)(4)(A), and the contention
that under section 6015(d)(3)(C) "all of the unreported
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items giving rise to the tax deficiency should be allocated
to her since she actively participated in the fraud."
Following release of Vetrano I, the Court issued an
order directing the parties to advise the Court of the
action necessary to decide the issue of Mrs. Vetrano's
relief from joint and several liability with respect to
petitioners' joint return for 1993. Through her attorney,
Mrs. Patricia Vetrano filed a response asking the Court
"to withdraw, without prejudice, her request that the Tax
Court rule whether or not she is entitled to * * * [such]
relief."
In response to the Court's order, respondent asked
the Court not to permit Mrs. Vetrano to withdraw the issue
from the case without prejudice. According to respondent,
Mrs. Vetrano "cannot withdraw her * * * claim because the
Internal Revenue Service has already made a determination
that her claim is denied." Respondent also asked the Court
to deny Mrs. Vetrano's claim for relief under section
6015(b) principally on the ground that there is sufficient
evidence in the record to show that at the time she signed
the return for 1993, she knew of each income item giving
rise to the deficiency for that year.
In discussing section 6015(c), respondent repeated the
argument made in respondent's reply brief that Mrs. Vetrano
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had not established her eligibility to elect relief under
section 6015(c) because she had not established either that
she was no longer married to, or was legally separated
from, Mr. Vetrano at the time she elected under section
6015(c), nor had she established that she was not a member
of the same household at any time during the 12-month
period ending on the date she made her election under
section 6015(c). See sec. 6015(c)(3)(A)(i). Respondent
also repeated the arguments that Mrs. Vetrano's election
under section 6015(c) does not apply to any part of the
deficiency because Mrs. Vetrano had actual knowledge of
all of the items giving rise to the deficiency, see sec.
6015(c)(3)(C), that her share of the deficiency should be
increased by the value of certain "disqualified assets"
that Mr. Vetrano transferred to her, sec. 6015(c)(4)(A),
and that Mrs. Vetrano should remain jointly and severally
liable for the deficiency at issue because of her fraud,
see sec. 6015(d)(3)(C). Respondent did not repeat the
argument that Mrs. Vetrano is ineligible to elect relief
under section 6015(c) because assets were transferred to
her by her husband as part of a fraudulent scheme. See
sec. 6015(c)(3)(A)(ii).
Thereafter, the Court issued an order giving the
parties 30 days in which to request further trial in this
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case with respect to Mrs. Vetrano's eligibility for relief
under section 6015. In that order, the Court noted that if
further trial were not held, pursuant to the request of the
parties, then the case would remain submitted on the basis
of the existing record. Petitioners filed no report in
response to the Court's order and, thus, did not request
further trial.
Respondent's response to the Court's order "requests
that further trial be held as to Patricia Vetrano's
qualification to claim relief under §6015(c), the value of
assets transferred to her under §6015(c)(4), and any other
facts the Court may need to make a decision on the merits."
Respondent also makes the following concession:
In addition, respondent now understands that
petitioners were divorced on February 2, 1999
and, to save time, respondent would now concede
that she is now divorced and she is entitled to
make a claim under I.R.C. §6015(c)(3)(A)(i).
Discussion
At the outset, we note that former section 6013(e)
was stricken from the Internal Revenue Code upon the
passage of section 6015. See RRA 1998 sec. 3201(e)(1), 112
Stat. 740. This change applies to any tax liability which
arose after the date of enactment of RRA 1998; i.e., July
22, 1998, or any tax liability which arose before such date
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but which remained unpaid as of such date. See RRA 1998
sec. 3201(g)(1), 112 Stat. 740. Following passage of
section 6015, petitioners could no longer seek relief from
joint and several liability for Mrs. Vetrano with respect
to their joint return for 1993 under former section
6013(e). See King v. Commissioner, 115 T.C. 118, 121
(2000); Butler v. Commissioner, 114 T.C. 276, 282 (2000);
cf. Miller v. Commissioner, 115 T.C. 582 (2000).
As mentioned above, Mrs. Vetrano elected relief under
section 6015 in petitioners' posttrial brief. Petitioners'
entire argument regarding Mrs. Vetrano's eligibility for
relief under section 6015 is as follows:
Should this Court determine that Mr. Vetrano
received the income from BMAP in 1993 and that
Mrs. Vetrano is not entitled to the protection
afforded to her under 26 U.S.C. § 6013(e),
Mrs. Vetrano hereby elects relief from the joint
liability on the 1993 return under 26 U.S.C. §
6015. A copy of that provision is attached as
Exhibit "A". Pursuant to § 6015(c)(3)(A)(i)(I),
Mrs. Vetrano is "legally separated from"
Mr. Vetrano. Attached as Exhibit "B" is a copy
of the divorce complaint which was filed against
her husband in the Camden County Superior Court
on August 7, 1998. [Emphasis supplied.]
Petitioners did not seek to formally amend their petition
to include relief under section 6015 as an issue in this
case, but the parties and the Court have treated it as
having been placed at issue. In these circumstances, we
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treat Mrs. Vetrano's election of relief under section 6015
as an amendment to the petition placing section 6015 at
issue in these proceedings. Cf. Corson v. Commissioner,
114 T.C. 354, 363-364 (2000); Charlton v. Commissioner,
114 T.C. 333, 338-339 (2000).
The first issue for decision in this Supplemental
Opinion is Mrs. Vetrano's request to withdraw, without
prejudice, the issue of whether she is entitled to relief
from joint and several liability under section 6015. By
asking to withdraw this issue "without prejudice", it is
evident that Mrs. Vetrano wants to preserve her right to
elect relief under section 6015(b) or (c) at a later time.
In considering Mrs. Vetrano's request, we note section
6015(g)(2), which provides as follows:
Res judicata.-–In the case of any election
under subsection (b) or (c), if a decision of a
court in any prior proceeding for the same
taxable year has become final, such decision
shall be conclusive except with respect to the
qualification of the individual for relief which
was not an issue in such proceeding. The
exception contained in the preceding sentence
shall not apply if the court determines that the
individual participated meaningfully in such
prior proceeding.
The above provision prescribes the effect that a final
court decision for a particular taxable year will have on
a subsequent election by the taxpayer under subsection (b)
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or (c) of section 6015 for the same taxable year. By its
terms, an individual cannot make an election under section
6015(b) or (c) for any taxable year that is the subject of
a final court decision, unless the individual's qualifica-
tion for relief under section 6015(b) or (c) was not an
issue in the prior court proceeding and the individual did
not participate meaningfully in the prior proceeding. See
sec. 6015(g)(2). Stated differently, an individual who
participated meaningfully in a court proceeding is
precluded from electing relief under section 6015(b) or
(c) for the same taxable year after the decision of the
court becomes final, whether or not the individual's
qualification for relief under section 6015(b) or (c)
was an issue in the prior proceeding. See sec. 6015(g)(2).
Section 6015(g)(2) was originally enacted as section
6015(e)(3)(B) by RRA 1998 sec. 3201(a), and, as mentioned
above, became effective as to any liability for tax that
remained unpaid as of the date of enactment of that Act,
July 22, 1998. See RRA 1998 sec. 3201(g)(1). As
originally enacted, this provision was expressly applicable
only to decisions of this Court. See former sec.
6015(e)(3)(B), as enacted by RRA 1998. In considering
technical amendments to RRA 1998, Congress wanted to make
it clear that a petition for review by the Tax Court, as
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provided by section 6015(e), sometimes referred to as a
stand-alone proceeding, was not the exclusive procedure for
review of issues involving section 6015 but was an
additional avenue "by which innocent spouse relief could be
considered." See H. Conf. Rept. 106-1033, at 1023 (2000).
To effectuate that intent, Congress deleted the reference
to the Tax Court in the above res judicata provision so
that it would apply to a final decision of any court, and
Congress moved the provision from subsection (e) of section
6015, which applies only to the Tax Court, to subsection
(g). See Consolidated Appropriations Act, 2001, Pub. L.
106-554, sec. 1(a)(7), 114 Stat. 2763. (Hereinafter
referred to as Consolidated Appropriations Act, 2001).
This amendment to RRA 1998 became effective on December 21,
2000. See id., sec. 313(f), 114 stat. 2763A-643.
In discussing the proper time to elect relief under
section 6015, the conference report that accompanied the
Consolidated Appropriations Act, 2001, states as follows:
Congress did not intend that taxpayers be
prohibited from seeking innocent spouse relief
until after an assessment has been made; Congress
intended the proper time to raise and have the
IRS consider a claim to be at the same point
where a deficiency is being considered and
asserted by the IRS. This is the least
disruptive for both the taxpayer and the IRS
since it allows both to focus on the innocent
spouse issue while also focusing on the items
that might cause a deficiency. It also permits
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every issue, including the innocent spouse issue,
to be resolved in single administrative and
judicial process. The bill clarifies the
intended time by permitting the election under
(b) and (c) to be made at any point after a
deficiency has been asserted by the IRS.
[Emphasis supplied.]
H. Conf. Rept. 106-1033, at 1023 (2000). Thus, Congress
expressed the view that taxpayers should be limited to a
single administrative and judicial process to resolve
issues under section 6015.
Before section 6015(g)(2) and its predecessor were
enacted, if a court decision had become final as to a
particular taxable year, the taxpayer could be barred under
the doctrine of res judicata from seeking relief from joint
and several liability in a later proceeding for the same
taxable year. See, e.g., United States v. Bryant, 15 F.3d
756, 758 (8th Cir. 1994); United States v. Shanbaum, 10
F.3d 305, 313-314 (5th Cir. 1994); United States v.
Helmick, 58 AFTR2d 86-5280, 86-1 USTC par. 9450 (M.D. Pa.
1986). See generally Commissioner v. Sunnen, 333 U.S. 591(1948). This was true whether or not relief from joint and
several liability had been an issue in the prior court
proceeding. See United States v. Shanbaum, supra. Section
6015(g)(2) and its predecessor change the result that
obtained under prior law by permitting an individual who
had not participated meaningfully in the prior court
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proceeding to elect relief under section 6015(b) or (c), as
long as the individual's qualification for relief under
section 6015(b) or (c) was not an issue in the prior court
proceeding.
Petitioners raised Mrs. Vetrano's qualification for
relief under both section 6015(b) and (c) as an issue in
this proceeding. Section 6015(g)(2) governs the effect
that a final decision in this case will have on a later
election by Mrs. Vetrano under section 6015(b) or (c).
We have no authority to override section 6015(g)(2) or
vary its terms. Thus, we have no authority to grant
Mrs. Vetrano's request for leave to withdraw her election
under section 6015 as an issue in this case "without
prejudice". Accordingly, we consider Mrs. Vetrano's
election of relief from joint and several liability under
section 6015. Moreover, the concerns about judicial
economy as expressed by Congress in the legislative
history, the Consolidated Appropriations Act, 2001, quoted
above, and fairness to the parties support our reaching the
issue on the merits.
In making her election under section 6015,
Mrs. Vetrano did not limit the election to subsection (b)
or subsection (c). We shall treat it as an election under
both subsections. The second issue in this Supplemental
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Opinion is whether Mrs. Vetrano is eligible for relief
under section 6015(b). Section 6015(b) is applicable to
all joint filers who elect relief under that subsection and
who establish that they meet the four other requirements
set forth therein. The other requirements are similar to
the requirements that were prescribed by former section
6013(e). See Butler v. Commissioner, 114 T.C. at 283.
One of those requirements is that the individual
seeking relief under section 6015(b) establish "that in
signing the return he or she did not know, and had no
reason to know" that there was an understatement
attributable to the erroneous items of the other spouse.
Sec. 6015(b)(1)(C); see Cheshire v. Commissioner, 115 T.C.
183, 192-193 (2000). Notwithstanding the individual's
knowledge or reason to know of some part of the
understatement, section 6015(b)(2) permits the individual
to qualify for relief as to the remainder of the
understatement, if the individual establishes that in
signing the return he or she did not know, and had no
reason to know, the extent of the understatement. See sec.
6015(b). In that case, the individual will be relieved of
liability for tax "to the extent that such liability is
attributable to the portion of such understatement of which
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such individual did not know and had no reason to know."
Sec. 6015(b)(2).
We agree with respondent that the record of this case
demonstrates that Mrs. Vetrano knew of the portion of the
understatement that is attributable to the payments
received from BMAP. Petitioners admitted that "petitioner-
wife was aware of all the payments that BMAP made to
petitioner-husband." As to the remainder of the
understatement, petitioners failed to introduce any
evidence to show that Mrs. Vetrano did not know and had no
reason to know of the unreported payment from Camden City
Probation. Therefore, we agree with respondent that
Mrs. Vetrano is not eligible for relief under section
6015(b) as to any part of the understatement.
As to relief under section 6015(c), the third issue
in this Supplemental Opinion, section 6015(c)(3)(A) imposes
certain conditions for eligibility to elect relief under
that subsection. To meet the first such condition, the
taxpayer must prove that he or she is no longer married to,
or is legally separated from, the person with whom the
joint return was made, or must prove that he or she was not
a member of the same household with such individual during
the 12-month period ending on the date the election is
filed. See sec. 6015(c)(3)(A)(i).
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As to this first condition for electing relief under
section 6015(c), petitioners' posttrial brief states as
follows:
Pursuant to §6015(c)(3)(A)(i)(I), Mrs. Vetrano is
'legally separated from' Mr. Vetrano. Attached
as exhibit 'B' is a copy of the divorce complaint
which was filed against her husband in the Camden
County Superior Court on August 7, 1998.
The complaint for divorce attached as exhibit B to
petitioners' brief purports to have been filed in the State
court 12 days before the date on which petitioners'
posttrial brief was filed in this Court. There is no
evidence that Mrs. Vetrano was divorced from Mr. Vetrano
or became legally separated from him during that 12-day
period. Furthermore, petitioners do not allege that
Mrs. Vetrano was not a member of the same household as
Mr. Vetrano during the 12-month period ending on the date
of her election under section 6015(c). In this regard,
we note that, according to the complaint for divorce,
Mrs. Vetrano sought a divorce on the grounds of extreme
cruelty, pursuant to N.J. Stat. Ann. sec. 2A:34-2(c)
(West 2000). She did not seek divorce on the grounds of
separation for a period of at least 18 or more consecutive
months, a separate ground for divorce under the New Jersey
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divorce statute. See N.J. Stat. Ann. sec. 2A:34-2(d) (West
2000).
The language of section 6015(c)(3)(A)(i) makes it
clear that this eligibility requirement must be met as of
the date the election is filed. Section 6015(c)(3)(A)
(i)(I) states that the electing spouse must be divorced or
legally separated "at the time such election is filed" and
section 6015(c)(3)(A)(i)(II) states that the electing
spouse must not have been a member of the same household
with the nonelecting spouse "during the 12-month period
ending on the date such election is filed". If the
taxpayer does not meet one of those requirements as of the
date of the election, then the taxpayer is not eligible to
elect relief under section 6015(c). See sec. 6015(c)(3)
(A)(i). In that event, it would appear that the taxpayer
must file a second election when he or she meets the
requirements of section 6015(c)(3)(A)(i).
There is no basis in the record of this case for the
statement in petitioners' posttrial brief that Mrs. Vetrano
was legally separated from Mr. Vetrano at the time
petitioner's posttrial brief was filed and her election
under section 6015(c) was made. Furthermore, there is no
evidence to show that Mrs. Vetrano was no longer married to
Mr. Vetrano on the date of her election, nor is there
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evidence to show that she had not been a member of the same
household as Mr. Vetrano during the 12-month period ending
on the date of her election. Therefore, we agree with
respondent that, as of the date on which Mrs. Vetrano filed
her election under section 6015(c): "She was not eligible
to make the election." It is unnecessary for us to
consider the other points raised in respondent's reply
brief regarding Mrs. Vetrano's election under section
6015(c).
As noted above, in response to the Court's order
giving the parties 30 days in which to request further
trial, respondent alleges that petitioners were divorced
after the date on which petitioners filed their posttrial
brief, and, as of that later date, Mrs. Vetrano met the
requirement of section 6015(c)(3)(A)(i)(I) and was
eligible to elect under 6015(c). Respondent argues that
the Court should permit the parties to present evidence
concerning the date of Mrs. Vetrano's divorce because:
"Even if the initial claim could not be decided on the
basis that it was premature, this new evidence would cure
that problem."
We agree with respondent that if Mrs. Vetrano became
eligible to elect relief under section 6015(c) after the
date of the first election, then she could make a second
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election under section 6015(c) and place the issue of her
eligibility for relief under section 6015(c) before the
Court in these proceedings. We have given her ample
opportunity to do that. However, the election under
section 6015(c) is Mrs. Vetrano's to make, and she has made
it clear that she does not seek to make a second election.
See sec. 6015(a)(2). We suspect that Mrs. Vetrano did not
make a second election because there would be little to
gain from a second election. In Vetrano I, we found that
some part of the underpayment for 1993 was due to
Mrs. Vetrano's fraud based on the fact that "she was aware
of the payments received from BMAP during 1993, and she
played an important part in converting the checks received
from BMAP to cash." Were we to reach the merits of
Mrs. Vetrano's election under section 6015(c), we, no
doubt, would find her election invalid as to the payments
from BMAP because she had "actual knowledge" of those
payments. See sec. 6015(c)(3)(C). Having failed to make a
second election during these proceedings, if Mrs. Vetrano
attempts to make an election under section 6015(c) after
the decision in this case becomes final, then
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the effect of the Court's decision in this case will be
governed by section 6015(g)(2), as discussed above.
On the basis of Vetrano I and the above discussion,
Decision will be entered
for respondent.