noting the Commissioner's concession that "'a discretionary act * * * could only be subject to an abuse of discretion review'"
How later courts described this case
- noting the Commissioner's concession that "'a discretionary act * * * could only be subject to an abuse of discretion review'"
- holding that two-year statute of limitations on requests for innocent spouse release was improper
- “section 6015(f), uses the discretionary term ‘may”’
Written by the judges who cited it.
Later courts went against this
Disagreed with — as noted by a later court
On brief, petitioner also concedes that, because an appeal in this case would normally lie in the U.S. Court of Appeals for the Seventh Circuit, she is not entitled to relief under sec. 6015(f) for 2003 under Lantz v. Commissioner, 607 F.3d 479 (7th Cir. 2010), revg. 132 T.C. 131 (2009), which we shall follow, see Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971), even though we dis…
medium confidence
The opinion
HALPERN, J., dissenting: Although I join the dissenting opinion of Judges Thornton and Holmes, I write separately to furnish what I believe to be another significant reason for rejecting the majority’s conclusion that section 1.6015-5(b)(1), Income Tax Regs., is an impermissible interpretation of section 6015(f) and, therefore, invalid.
The 2-year period of limitations on requests for equitable relief under section 6015(f) promulgated in section 1.6015-5(b)(1), Income Tax Regs., is not the absolute temporal bar to relief that the majority assumes it to be. Section 301.9100-l(c), Proced. & Admin. Regs., gives the Commissioner discretion to “grant a reasonable extension of time under the rules set forth in § * * * 301.9100-3 to make a regulatory election” (9100 relief)- Pursuant to section 301.9100-3(a), Proced. & Admin. Regs., requests for 9100 relief “will be granted” provided the taxpayer is able to establish that he or she “acted reasonably and in good faith, and the grant of relief will not prejudice the interests of the Government”, conditions which petitioner, presumably, is able to satisfy. The term “election” is broadly defined to include “an application for relief in respect of tax”. Sec. 301.9100-l(b), Proced. & Admin. Regs.
The majority, in note 10 of its opinion, accepts the “mutual position” of the parties that 9100 relief is unavailable to extend the 2-year period of limitations under section 1.6015-5(b)(1), Income Tax Regs., because, in the light of respondent’s position to that effect, “any effort by petitioner to apply for [9100] relief * * * would be fruitless.” In support of that position, the majority cites Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 , 414 (1945), and Phillips Petroleum Co. v. Commissioner, 101 T.C. 78, 97 (1993), affd. without published opinion 70 F.3d 1282 (10th Cir. 1995), for the proposition that an agency’s interpretation of its own regulation is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” The majority overlooks the fact that, in both of those cases, deference was afforded to agency interpretations issued in the form of published guidance (in Seminole Rock, a “bulletin” issued contemporaneously with the regulation and, in Phillips Petroleum, a published IRS Notice). Here, respondent’s position is no more than a litigating position that, in my view, is without merit, or, in the language of Bowles v. Seminole Rock & Sand Co., supra at 414 , “plainly erroneous” and “inconsistent with the regulation”, which would cause its rejection in any event.
Nor do I agree with the majority’s conclusion (also in note 10) that the procedures for requesting 9100 relief are so burdensome as to make that relief “practically” unavailable to putative innocent spouses. Section 301.9100-3(e)(2), Proced. & Admin. Regs., imposes a not unreasonable requirement that the individual seeking relief under section 6015(f) submit a statement, albeit in affidavit form and under penalties of perjury, demonstrating that he or she acted reasonably and in good faith in failing to meet the regulatory deadline; and many, if not most, of the requirements for third-party affidavits and additional information set forth in section 301.9100-3(e)(3) and (4), Proced. & Admin. Regs., are of doubtful application to putative innocent spouses. And although it is true that (1) a request for 9100 relief is treated as a request for a letter ruling, see sec. 301.9100-3(e)(5), Proced. & Admin. Regs., and (2) a request for a letter ruling generally must be accompanied by a great deal of information and documentary support, see Rev. Proc. 2009-1, sec. 7, 2009- 1 I.R.B. 1 , 16, much of the required information and documentation is not germane to requests for innocent spouse relief under section 6015(f), and substantial compliance with the need to furnish the balance of the required information and documentation will probably suffice. See Militello v. Cent. States, Se. & Sw. Areas Pension Fund, 360 F.3d 681 , 688-689 (7th Cir. 2004).