Deihl v. Commissioner

SARI F. DEIHL, PETITIONER v. COMMISSIONER OF INTERNAL

REVENUE, RESPONDENT

Docket No. 22897–08. Filed February 23, 2010.

In 2004 P and her husband litigated three consolidated

cases before the Court concerning their 1996, 1997, and 1998

tax years. P’s attorney raised the issue of relief from joint and

several liability under sec. 6015, I.R.C., in the petition for

1996 but not 1997 or 1998. The request did not invoke any

specific subsection of sec. 6015, I.R.C. P then withdrew her

claim for relief from joint and several liability in the stipula-

tion of facts for the consolidated cases. P’s husband died after

the opinion in the consolidated cases was filed but before

decisions were entered. After decisions were entered, P filed

an administrative claim for relief from joint and several

liability with R for 1996, 1997, and 1998. R determined P did

not qualify for relief under sec. 6015(b), (c), or (f), I.R.C., and

that P’s claim was barred by sec. 6015(g)(2), I.R.C., regard-

less. Held: Sec. 6015(g)(2), I.R.C., applies because the Court

entered final decisions for 1996, 1997, and 1998. Held, further,

P did not participate meaningfully in the prior proceeding.

Held, further, relief from joint and several liability was raised

only in the pleadings for 1996. Therefore, for 1997 and 1998

sec. 6015, I.R.C., relief from joint and several liability was not

an issue in the prior proceeding. Held, further, relief from

joint and several liability under sec. 6015(b) and (f), I.R.C., for

1996 was an issue in the prior proceeding. Held, further, for

purposes of sec. 6015(g)(2), I.R.C., an election under sec.

6015(c), I.R.C., shall not be deemed to have been an issue in

a prior proceeding where the requesting spouse’s original

request for relief under sec. 6015, I.R.C., did not specifically

invoke sec. 6015(c), I.R.C., and the requesting spouse was

ineligible to make an election under sec. 6015(c), I.R.C., at the

time because the requesting spouse’s husband was alive.

Accordingly, an election under sec. 6015(c), I.R.C., for 1996

was not an issue in the prior proceeding. Held, further, sec.

6015(g)(2), I.R.C., bars P from claiming relief from joint and

several liability for 1996 under sec. 6015(b) and (f), I.R.C.

Held, further, the exception in sec. 6015(g)(2), I.R.C., applies

to, and P is not barred from electing, relief from joint and sev-

eral liability under sec. 6015(c), I.R.C., for 1996 and relief

156

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(156) DEIHL v. COMMISSIONER 157

from joint and several liability under sec. 6015(b), (c), and (f),

I.R.C., for 1997 and 1998.

Tim A. Tarter and Kirk A. McCarville, for petitioner.

Anne W. Durning, for respondent.

OPINION

VASQUEZ, Judge: Petitioner seeks review of respondent’s

determination that she is not entitled to relief from joint and

several liability under section 6015(b), (c), and (f) 1 with

respect to her joint Federal income tax liabilities for 1996,

1997, and 1998. Our jurisdiction to review petitioner’s

request for relief is conferred by section 6015(e). The only

issue for decision is whether petitioner is precluded by the

doctrine of res judicata as set forth in section 6015(g)(2) from

raising the issue of relief from joint and several liability for

the years in issue. 2

Background

Petitioner and her husband (Mr. Deihl) were the taxpayers

in three cases previously litigated in the Tax Court in 2004:

Docket Nos. 11136–02 (1996), 16293–02 (1998), and 1024–03

(1997). The cases were consolidated for trial, briefing, and

opinion (the consolidated cases). The consolidated cases con-

cerned the substantiation of business expense deductions

claimed by Mr. Deihl and petitioner in 1996, 1997, and 1998

related to their S corporation.

Mr. Deihl hired Donald MacPherson (Mr. MacPherson) to

represent him and petitioner in the consolidated cases.

Robert Hartmann (Mr. Hartmann) assisted Mr. MacPherson

with the representation. 3 Petitioner was not involved in the

1 Unless otherwise indicated, all section references are to the Internal Revenue Code as

amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.

2 Respondent in the notice of determination denied petitioner relief from joint and several li-

ability for each of the years in issue because: (1) ‘‘The information we have available does not

show you meet the requirements for relief ’’; (2) ‘‘The United States Tax Court or other court

issued a final decision regarding the liabilities from which you seek relief and you meaningfully

participated in that proceeding’’ (i.e., res judicata); (3) ‘‘You knew, or had reason to know, of

the income or deductions that caused the additional tax’’; and (4) ‘‘You did not show it would

be unfair to hold you responsible’’. On Mar. 27, 2009, the Court granted the parties’ joint motion

to sever the issues. This Opinion deals only with the issue of res judicata. We do not here decide

whether petitioner qualifies for relief from joint and several liability under sec. 6015.

3 Mr. Hartmann was originally hired by Mr. Deihl over 20 years ago to serve as counsel for

Mr. Deihl and petitioner’s businesses as well as for personal matters. He withdrew as attorney

of record in the consolidated cases to be able to serve as a witness at trial but continued to

Continued

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158 134 UNITED STATES TAX COURT REPORTS (156)

hiring of Mr. MacPherson and did not sign the engagement

letter for the consolidated cases.

Mr. MacPherson signed and filed the three petitions in the

consolidated cases; petitioner did not sign them. The petition

in docket No. 11136–02 (the 1996 petition) raised the issue

of relief from joint and several liability. It states:

Under Sec. 6013(e) and 6015, PETITIONER SARI F. DEIHL was/is an

innocent spouse for the year at issue in the statutory NOD. Considering

all of the facts and circumstances, it would be unfair to hold SARI respon-

sible for the understatement of tax, if any, and related penalties and

interest, if any.

The petitions in docket Nos. 16293–02 (1998) and 1024–03

(1997) did not raise the issue of relief from joint and several

liability. 4

On October 21, 2004, the parties submitted their stipula-

tion of facts in the consolidated cases. Paragraph 20 thereof

(paragraph 20) states that ‘‘Petitioner Sari F. Deihl no longer

seeks innocent spouse relief for the taxable years 1996, 1997

or 1998’’. Relief from joint and several liability was not dis-

cussed at trial in the consolidated cases (the 2004 trial).

The Tax Court filed its opinion in the consolidated cases on

December 15, 2005. See Deihl v. Commissioner, T.C. Memo.

2005–287 (Deihl I). The Court generally sustained the

Commissioner’s determinations of deficiencies in tax, addi-

tions to tax, and penalties against petitioner and Mr. Deihl

for 1996, 1997, and 1998 and instructed that decisions would

be entered under Rule 155. Mr. Deihl died on February 5,

2006, 52 days after Deihl I was filed but before the final

decisions in the consolidated cases were entered.

Petitioner served as personal representative for the estate

of Mr. Deihl from March 20, 2006, to July 30, 2007. She

sought new counsel after receiving advice from Mr. Mac-

Pherson and Mr. Hartmann with which she disagreed. On or

about March 16, 2006, petitioner retained Martha Patrick,

whose representation of petitioner ended on or around April

24, 2006. Soon thereafter, on April 27, 2006, petitioner

retained Terence D. Woolston (Mr. Woolston) and Tim A.

assist Mr. MacPherson throughout the litigation.

4 Similarly, the answers filed in 1997 and 1998 were silent as to relief from joint and several

liability and the Commissioner, in his pretrial memorandum for the consolidated cases, referred

only to 1996 in addressing petitioner’s claim for relief from joint and several liability.

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(156) DEIHL v. COMMISSIONER 159

Tarter of Woolston & Tarter P.C. to represent her and the

estate of Mr. Diehl.

Mr. Woolston and counsel for the Commissioner worked

together to finalize the Rule 155 computations in the consoli-

dated cases.

The Court entered its decision in docket No. 11136–02 on

September 12, 2006, and in docket Nos. 16293–02 and 1024–

03 on October 3, 2006. 5 Neither side appealed. 6

On or about March 6, 2007, petitioner filed Form 8857,

Request for Innocent Spouse Relief, requesting relief under

section 6015(b), (c), and (f) for 1996, 1997, and 1998. On

August 22, 2008, respondent sent petitioner a notice of deter-

mination denying petitioner’s request for relief from joint and

several liability for each of those years. On September 16,

2008, petitioner timely filed a petition for review of respond-

ent’s determination. Petitioner resided in Arizona at the time

she filed the petition in this case.

Discussion

Respondent argues that res judicata as delineated in sec-

tion 6015(g)(2) bars petitioner from claiming relief from joint

and several liability for 1996, 1997, and 1998 because the

Court entered final decisions for those years. Respondent fur-

ther argues that the exception to res judicata in section

6015(g)(2) does not apply because relief from joint and sev-

eral liability was an issue in the consolidated cases and peti-

tioner participated meaningfully therein.

Petitioner argues that the exception to res judicata in sec-

tion 6015(g)(2) applies because relief from joint and several

liability was not an issue in the consolidated cases and she

did not participate meaningfully therein. She also argues

that res judicata should not apply to her election under sec-

tion 6015(c) because she could not have raised it in the

consolidated cases. 7

5 The Court originally entered its decisions in docket Nos. 16293–02 and 1024–03 on Sept. 12,

2006, but vacated the original decisions after granting the Commissioner’s motion to vacate.

6 The decision in docket No. 11136–02 became final on Dec. 12, 2006. The decisions in docket

Nos. 16293–02 and 1024–03 became final on Jan. 2, 2007.

7 Respondent argues petitioner could have raised sec. 6015(c) by moving the Court to reopen

the record or to vacate the decisions before they became final. Given our conclusion, discussed

hereinafter, that petitioner did not participate meaningfully in the consolidated cases and that

relief under sec. 6015(c) in fact was not an issue in the consolidated cases, we need not decide

whether petitioner could have raised relief under sec. 6015(c) in the consolidated cases.

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160 134 UNITED STATES TAX COURT REPORTS (156)

I. Section 6015(g)(2)

Section 6015(g)(2) codifies the application of res judicata

with respect to claims for relief from joint and several

liability under section 6015.

A. Res Judicata in General

Under the judicial doctrine of res judicata, when a court of

competent jurisdiction enters a final judgment on the merits

of a cause of action, the parties to the action are bound by

every matter that was or could have been offered and

received to sustain or defeat the claim. Commissioner v.

Sunnen, 333 U.S. 591, 597 (1948); see also Gustafson

v. Commissioner, 97 T.C. 85, 91 (1991). The doctrine of res

judicata ‘‘serves to promote judicial economy and the repose

of disputes’’ by precluding repetitious lawsuits. Gustafson v.

Commissioner, supra at 91.

Because Federal income taxes are determined on an

annual basis, each year is a separate cause of action, and res

judicata is applied to bar subsequent proceedings involving

the same tax year. Commissioner v. Sunnen, supra at 597–

598; Calcutt v. Commissioner, 91 T.C. 14, 21 (1988). As a

general rule, where the Tax Court has entered a decision for

a taxable year, both the taxpayer and the Commissioner

(with certain exceptions) are barred from reopening that

year. Burke v. Commissioner, 105 T.C. 41, 47 (1995);

Hemmings v. Commissioner, 104 T.C. 221, 233 (1995).

A stipulated judgment is a judgment on the merits for pur-

poses of res judicata. Baker v. IRS, 74 F.3d 906, 910 (9th Cir.

1996) (and cases cited thereat). It follows that, for res judi-

cata purposes, the decision incorporates those elements that

the parties have settled by stipulation as well as those that

have been redetermined by the Court. See Lincir v. Commis-

sioner, T.C. Memo. 2007–86.

Although the general outlines of res judicata are relatively

straightforward, the details applicable in certain cases may

be quite intricate. See, e.g., the discussion in Hemmings v.

Commissioner, supra at 230–235. In addition, Congress

sometimes enacts legislation that overrides or modifies res

judicata. See, e.g., Burke v. Commissioner, supra at 47.

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(156) DEIHL v. COMMISSIONER 161

B. The Exception

Under common law principles of res judicata, a taxpayer

who was a party to a prior proceeding for the same taxable

year is barred from seeking relief from joint and several

liability whether or not the claim had been raised as an issue

in the prior proceeding. Section 6015(g)(2) creates an excep-

tion to this rule where such relief was not an issue in the

prior proceeding. However, the exception does not apply if

the court determines that the taxpayer participated meaning-

fully in the prior proceeding. 8 Thus, res judicata does not bar

a taxpayer from requesting relief from joint and several

liability under section 6015(b), (c), or (f) if: (1) Relief from

joint and several liability under section 6015(b), (c), or (f) was

not an issue in the prior proceeding; and (2) the court deter-

mines that the taxpayer did not participate meaningfully in

the prior proceeding. Said differently, if a final decision was

entered in a prior proceeding for a tax year and relief from

joint and several liability was an issue therein, section

6015(g)(2) will bar the taxpayer from subsequently

requesting the same relief for that year. Or, if a final deci-

sion was entered in a prior proceeding for a tax year and the

taxpayer participated meaningfully therein, section

6015(g)(2) bars the taxpayer from subsequently requesting

relief from joint and several liability that was or could have

been an issue in the prior proceeding. See Vetrano v.

Commissioner, 116 T.C. 272, 278 (2001); sec. 1.6015–1(e),

Income Tax Regs.

II. The Consolidated Cases

This Court entered final decisions in the consolidated cases

for the tax years at issue here. Res judicata as delineated in

section 6015(g)(2) bars petitioner’s claims for relief from joint

and several liability unless those claims for relief were

not an issue in and petitioner did not participate meaning-

8 Sec. 6015(g)(2) provides:

RES JUDICATA.—In the case of any election under subsection (b) or (c) or of any request for equi-

table relief under subsection (f), 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 quali-

fication 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.

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162 134 UNITED STATES TAX COURT REPORTS (156)

fully in the consolidated cases. We first address whether peti-

tioner participated meaningfully in the consolidated cases.

A. Meaningful Participation

Under section 6015(g)(2), the requesting spouse bears the

burden of proving, by a preponderance of the evidence, that

he or she did not participate meaningfully in the prior litiga-

tion. Monsour v. Commissioner, T.C. Memo. 2004–190.

Meaningful participation is not defined in section

6015(g)(2) or the accompanying regulations, and the legisla-

tive history does not provide guidance as to the proper defini-

tion. Moreover, the Court, despite deciding whether

requesting spouses have participated meaningfully in prior

proceedings, has not clearly defined meaningful participation,

although we have indicated that while ‘‘merely [complying]’’

with a spouse’s instructions to sign various pleadings and

other documents filed in prior litigation is not conclusive of

meaningful participation, Thurner v. Commissioner, 121 T.C.

43, 53 (2003), signing court documents and participating in

settlement negotiations are indicators of meaningful partici-

pation, id.; Monsour v. Commissioner, supra. This case war-

rants a brief description of our cases discussing meaningful

participation.

In Thurner v. Commissioner, supra, the taxpayer husband

and the taxpayer wife filed separate petitions each seeking

relief from joint and several liability under section 6015. The

Commissioner moved for summary judgment on the issue of

meaningful participation. We found that the record clearly

established that the taxpayer husband had participated

meaningfully in a prior court proceeding. The taxpayer hus-

band had signed court documents and been fully engaged in

the proceeding. In addition, the taxpayer husband had main-

tained exclusive control over all tax matters including the

handling of the prior proceeding. To the contrary, we found

there to be a genuine issue of material fact as to whether the

taxpayer wife had participated meaningfully in the prior pro-

ceeding where she asserted that she had merely complied

with her husband’s instructions to sign the pleadings and

various other documents that were filed in the prior pro-

ceeding. 9

9 Because the case involved a motion for summary judgment, the Court did not decide whether

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(156) DEIHL v. COMMISSIONER 163

In Monsour v. Commissioner, supra, we found the taxpayer

had participated meaningfully in a prior Tax Court pro-

ceeding involving the taxpayer and her husband. We found

significant the fact that the taxpayer chose not to call a par-

ticular witness to testify about her level of participation in

the prior proceeding and inferred from her failure to call this

witness that his testimony, if given, would have been

unfavorable to the taxpayer. The taxpayer relied on her hus-

band’s testimony to support her position that she had not

participated meaningfully. However, we did not find this

testimony to be credible and we did not rely on this testi-

mony to support the taxpayer’s contentions. Moreover, the

taxpayer, an attorney, agreed to a stipulated decision that

she was jointly and severally liable for deficiencies in tax.

In Huynh v. Commissioner, T.C. Memo. 2006–180, affd.

276 Fed. Appx. 634 (9th Cir. 2008), the record showed that

in a prior proceeding 10 the requesting spouse had read and

signed two petitions filed with the Tax Court; spoken and

participated at pretrial meetings with IRS counsel; signed

various documents including a stipulation of settled issues, a

power of attorney, and stipulations of facts; testified about

her husband’s potential income sources; and signed a trial

brief, a reply brief, and a motion for leave to file a reply

brief. The taxpayer had also prepared her and her husband’s

joint Federal income tax returns for the years in issue.

Despite the requesting spouse’s arguments to the contrary

and although she may have signed some documents under

the direction of her husband, we held on the entire record

that the taxpayer had nevertheless participated meaningfully

in the prior proceeding.

In Moore v. Commissioner, T.C. Memo. 2007–156, we found

the taxpayer’s participation in a prior proceeding to be mean-

ingful where the taxpayer had been informed about section

6015, had participated in meetings with IRS counsel and the

Court, and had voluntarily entered into a settlement.

Petitioner’s participation in the consolidated cases differs

significantly from that of the requesting spouses in Monsour,

Huynh, and Moore. Petitioner, who is not an attorney and

did not complete her high school education, did not sign any

the taxpayer wife had participated meaningfully in the prior proceeding.

10 Huynh v. Commissioner, T.C. Summary Opinion 2001–131.

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164 134 UNITED STATES TAX COURT REPORTS (156)

court documents in the consolidated cases. She did not

review the petitions or the stipulations of facts, nor did she

agree to any of the stipulations. Mr. MacPherson and Mr.

Hartmann did not discuss these documents with petitioner.

In fact, she saw them for the first time at trial in the present

matter. Petitioner did not meet with any IRS personnel,

participate in any settlement negotiations with the IRS, or sit

in on any such meetings between her attorneys and the IRS

during the litigation in the consolidated cases. However, peti-

tioner was called as a witness in the 2004 trial and testified

briefly 11 about certain expenses for entertainment and com-

puters deducted by her and Mr. Deihl’s S corporation.

Respondent called Robert Cuatto (Mr. Cuatto), associate

area counsel with the IRS, to testify about petitioner’s partici-

pation in the consolidated cases. Mr. Cuatto observed peti-

tioner in discussions with Mr. Deihl and their counsel during

several breaks in the 2-day trial and in the hallway in the

morning before trial both days. In his opinion, petitioner

seemed to be engaged and actively involved in the trial. How-

ever, Mr. Cuatto was not involved in any of the aforemen-

tioned discussions and admittedly had no knowledge of what

was being discussed. We cannot speculate as to what peti-

tioner, Mr. Deihl, and their counsel may have been dis-

cussing during breaks and in the hallway before trial.

Petitioner and respondent initially expressed a desire to

call Mr. MacPherson to testify as to petitioner’s participation

in the consolidated cases. However, Mr. MacPherson was in

Germany recovering from an illness at the time of trial in the

present matter and did not testify. The parties agreed that

the record was sufficiently complete without his testimony.

Therefore, we shall not infer anything from the fact that Mr.

MacPherson did not testify.

Mr. Hartmann did not meet with petitioner immediately

after Deihl I was filed. He was instructed by Mr. Deihl to

keep the findings in Deihl I ‘‘under our hat for a while’’. It

was only after Mr. Deihl’s death that Mr. Hartmann and Mr.

MacPherson met with petitioner. At that time they gave peti-

tioner advice with which she disagreed. Petitioner then

informed Mr. Hartmann that she was speaking with different

11 Only 11 out of 335 pages of the transcript from the 2004 trial consisted of petitioner’s testi-

mony.

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(156) DEIHL v. COMMISSIONER 165

attorneys. Mr. Woolston handled the consolidated cases from

that point on.

We believe Mr. Deihl, like the husband in Thurner v.

Commissioner, 121 T.C. 43 (2003), controlled the litigation in

the consolidated cases until his death. Although petitioner

testified at the 2004 trial, she was more like a third-party

fact witness than a participating litigant. The totality of the

evidence demonstrates that petitioner was never fully

informed or engaged in the litigation. We find that petitioner

has shown that she did not participate meaningfully in the

consolidated cases.

B. Relief at Issue in the Consolidated Cases

Mr. MacPherson raised the issue of relief from joint and

several liability in the 1996 petition. Although paragraph 20

seemingly withdraws the issue for all years in the consoli-

dated cases, the petitions and corresponding answers filed for

1997 and 1998 did not raise relief from joint and several

liability. Further, respondent’s pretrial memorandum for the

consolidated cases specifically addressed petitioner’s claim

with respect to 1996 only. Because relief from joint and sev-

eral liability was raised in the pleadings for 1996 only, that

is the only year in which said relief was an issue. See Rules

38, 324. Relief from joint and several liability was not an

issue in 1997 or 1998. The mere reference to 1997 and 1998

in paragraph 20 without more did not put relief from joint

and several liability in issue for those years. Accordingly,

petitioner is not barred from making an election under sec-

tion 6015(b) and (c) and requesting equitable relief under

section 6015(f) for 1997 and 1998.

The 1996 petition did not specify the basis for relief

requested under section 6015; i.e., whether petitioner was

electing or requesting relief under section 6015(b), (c), or (f).

However, petitioner was not eligible to make an election

under section 6015(c) when the 1996 petition was filed

because she was not divorced or separated from Mr. Deihl. 12

12 An individual shall only be eligible to make an election under sec. 6015(c) if at the time

of the election such individual is no longer married to, or is legally separated from, the indi-

vidual with whom such individual filed the joint return to which the election relates, or such

individual was not a member of the same household as the individual with whom such joint

return was filed at any time during the 12-month period ending on the date such election is

filed. Sec. 6015(c)(3)(A)(i). For purposes of these eligibility requirements, a widow is treated as

Continued

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166 134 UNITED STATES TAX COURT REPORTS (156)

Determining what subsections of section 6015 were an issue

in a prior proceeding under these facts is an issue of first

impression. We hold that for purposes of section 6015(g)(2),

an election under section 6015(c) shall not be deemed to have

been an issue in a prior proceeding where the requesting

spouse’s original request for relief under section 6015 did not

specifically invoke section 6015(c) and the requesting spouse

was ineligible to make an election under section 6015(c) at

the time because the requesting spouse’s husband was

alive. 13 Therefore, we conclude that petitioner’s claim for

innocent spouse relief in the 1996 petition was an election

under section 6015(b) and a request for equitable relief under

section 6015(f). Relief under section 6015(c) for 1996 was not

an issue in the consolidated cases. 14

Petitioner argues she should not be bound by the 1996

petition or paragraph 20 because she was not adequately rep-

resented during the consolidated cases and she was not

aware of the contents of the 1996 petition or paragraph 20

until after Deihl I was released. However, we have held that

‘‘the quality of advocacy and the actual knowledge of the liti-

gants are not special circumstances in determining whether

a prior judgment is a bar in a subsequent litigation.’’ Moore

v. Commissioner, T.C. Memo. 2007–156; see also Rule 33(b).

Accordingly, relief from joint and several liability under sec-

tion 6015(b) and (f) was an issue in the consolidated cases as

to 1996; relief under section 6015(c) was not.

We find that section 6015(g)(2) bars petitioner from

making an election under section 6015(b) and requesting

equitable relief under section 6015(f) for 1996. We find fur-

ther that the exception in section 6015(g)(2) applies to peti-

tioner’s claim for relief under section 6015(c) for 1996 and

petitioner’s claim for relief under section 6015(b), (c), and (f)

for 1997 and 1998.

no longer married. Jonson v. Commissioner, 118 T.C. 106, 123–124 (2002), affd. 353 F.3d 1181

(10th Cir. 2003).

13 Our holding does not impair the Court’s ability to interpret an ambiguous request for relief

under sec. 6015 as including an election under sec. 6015(c).

14 We do not attempt in this Opinion to decide how sec. 6015(g)(2) applies under a different

set of facts where a requesting spouse does not become eligible to elect relief under sec. 6015(c)

until after a decision in a prior proceeding has become final pursuant to sec. 7481.

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(156) DEIHL v. COMMISSIONER 167

III. Conclusion

A summary of our holdings follows. The Court entered

final decisions for petitioner’s 1996, 1997, and 1998 tax

years, which were litigated in 2004. Petitioner did not

participate meaningfully in that litigation. Relief from joint

and several liability was an issue in the consolidated cases

as to 1996 only under section 6015(b) and (f). Therefore, peti-

tioner is barred from making an election under section

6015(b) and requesting equitable relief under section 6015(f)

for 1996. Relief from joint and several liability under section

6015(c) for 1996 and section 6015(b), (c), and (f) for 1997 and

1998 was not an issue in the consolidated cases. Therefore,

the exception to res judicata in section 6015(g)(2) applies to

these claims. Accordingly, petitioner is not barred from

making an election under section 6015(c) for 1996 or

from making an election under section 6015(b) and (c) and

requesting equitable relief under section 6015(f) for 1997

and 1998.

In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we find them to be irrelevant or without

merit.

To reflect the foregoing,

An appropriate order will be issued.

f

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