# T.C. Summary Opinion 2015-20

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URL: https://www.frixlaw.com/law-library/documents/agency%3Atax-court%3A7516812c10609c9d

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

T.C. Summary Opinion 2015-20

UNITED STATES TAX COURT

MARIA SANCHEZ, Petitioner y.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 22622-12S.

Filed March 18, 2015.

George L. Willis and Anna Evans (student), for petitioner.
Whitney N. Moore, for respondent.

SUMMARY OPINION
CARLUZZO, Special Trial Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect when the
petition was filed.¹ Pursuant to section 7463(b), the decision to be entered is not

'Unless otherwise indicated, section references are to the Internal Revenue
Code of 1986, as amended, in effect for the relevant period.

SEfiVED MAR 1 8 20f5

-2reviewable by any other court, and this opinion shall not be treated as precedent

for any other case.
In a final notice of determination dated July 20, 2012, respondent denied
petitioner's claim for section 6015 relief with respect to her outstanding 2006
Federal income tax liability assessed by agreement following respondent's
examination of the 2006 Federal income tax return of a different individual. The
issues for decision are: (1) whether petitioner is "an individual who has made a
joint return" within the meaning of section 6015(a); and, if so, (2) whether she is
entitled to relief under that section.
Backaround
Some of the facts have been stipulated and are so found. At the time the
petition was filed, petitioner resided in California.
Petitioner and Francisco A. Sanchez Rodriguez married on December 24,
1988. They separated on November 6, 2006, and petitioner filed for divorce in

mid-2007. The divorce was finalized in 2011.
From the beginning of their marriage petitioner and Mr. Rodriguez filed a
joint Federal income tax return for each tax year before 2006. They relied on an
accountant to prepare the returns on the basis of information that Mr. Rodriguez

-3provided. Petitioner did not provide information for the preparation of the tax
returns, nor did she review the returns; she did, however, sign them.
Mr. Rodriguez' 2006 Federal income tax return was filed during October
2007 (Mr. Rodriguez' return). His filing status is shown as "single" on that return.
Mr. Rodriguez did not claim petitioner as a dependent on his return. She did not
file a 2006 Federal income tax return, nor did she discuss with Mr. Rodriguez
before his return was filed the possibility of filing a 2006 joint return. She was not
involved in the preparation of Mr. Rodriguez' return, and she did not sign that
return. Petitioner became aware of that return only after it was filed and selected
for examination.
At the time Mr. Rodriguez' return was filed, the couple was separated, and
petitioner had already initiated divorce proceedings. According to petitioner, Mr.

Rodriguez did not include her as a joint filer on the return "because he was angry
* * * [they] had just separated." Petitioner did not file a 2006 Federal income tax
return, and the record is unclear regarding whether she was obligated to do so.
The examination of Mr. Rodriguez' return resulted in the determination of a

deficiency. The revenue agent conducting the examination of Mr. Rodriguez'
return apparently concluded that Mr. Rodriguez and petitioner would benefit, at
least as far as their Federal income tax liabilities were concerned, if they were to

-4file a joint return. The revenue agent prepared a Form 4549, Income Tax
Examination Changes (consent), as though they had, although they never actually
did. The deficiency shown on the consent was computed as though petitioner and
Mr. Rodriguez had filed a 2006 joint return. Mr. Rodriguez signed the consent on
April 9, 2009; petitioner signed it on June 9, 2009. See sec. 6213(d).2 The
Federal income tax liability arising from her decision to do so is the liability to
which her Form 8857, Request for Innocent Spouse Relief, dated May 16, 2011,
relates.
Discussion
Section 6013(a) provides generally that spouses may elect to file a joint
Federal income tax return even though one of them has neither income nor
deductions. As a general rule, a joint return must be signed by both spouses. Sec.
1.6013-1(a)(2), Income Tax Regs. If a joint return is filed, then the spouses are
jointly and severally liable for the tax (including deficiencies) and related amounts
assessed as a result. Sec. 6013(d)(3).

2By signing the consent, Mr. Rodriguez and petitioner waived the
restrictions on assessment and collection provided in sec. 6213(a) and authorized
the Commissioner to immediately assess and collect the deficiency and related
amounts shown on the consent. S_ee sec. 6213(d).

-5Upon request or election, a spouse may be relieved ofjoint and several
liability arising from the filing of a joint return if the spouse satisfies one or more
provisions of section 6015. Relief is available under section 6015 only with
respect to an income tax liability arising from a joint return. See Alt v.

Commissioner, 119 T.C. 306, 312 (2002), aff'd, 101 Fed. Appx. 34 (6th Cir.
2004); Raymond v. Commissioner, 119 T.C. 191, 194-197 (2002). Our
jurisdiction to review the Commissioner's determination or failure to act in
response to a taxpayer's request for section 6015 relief is found in section
6015(e)(1). In cases commenced under authority of that section, such as this one,
we consider whether the taxpayer is entitled relief described in section 6015(b), (c)
or (f); we do not consider challenges as to the viability of the tax liability from
which the taxpayer seeks relief. See Block v. Commissioner, 120 T.C. 62, 64-65

(2003).
Petitioner did not participate in the preparation of or sign Mr. Rodriguez'
return. As best we can tell from what has been submitted, other than the liability
that can be traced to that return she had no Federal income tax liability for 2006.
According to petitioner, Mr. Rodriguez' return should be treated as her joint return
"[b]ecause I thought my husband would do it since we were married and he was in
the business".

-6Married taxpayers must intend to file a joint return. See Lane v.
Commissioner, 26 T.C. 405, 408 (1956). The spouses' intent, an issue of fact,
see Estate of Campbell v. Commissioner, 56 T.C. 1, 12-13 (1971); Harrington v.

Commissioner, T.C. Memo. 2012-285, at *8, is gleaned from all the facts
and circumstances, see Helfrich v. Commissioner, 25 T.C. 404, 407 (1955);
McCanless v. Commissioner, T.C. Memo. 1987-573. Under normal
circumstances, the requisite intent of the spouses is evidenced by the signature of
each on the joint return. The failure of one spouse to sign a return, however, is not
necessarily fatal to an election to file jointly if the facts and circumstances show
that both spouses intended to do so. See Estate of Campbell v. Commissioner, 56
T.C. at 12.
Under the circumstances, we find that at the time that Mr. Rodriguez' return
was prepared and filed, he did not have the requisite intent to file a joint return
with petitioner. His return was prepared after they had separated and was filed
after petitioner had initiated divorce proceedings. Mr. Rodriguez' return did not
include petitioner's name or signature, nor did he claim an exemption for
petitioner. On his return he listed his filing status as "single". Further supporting
a lack of intent to file a joint return, petitioner described Mr. Rodriguez' mental
state at the time he prepared and filed the return as being "angry" with her.

-7Therefore, we find that Mr. Rodriguez' return, as filed, is not a joint return within
the meaning of section 6013(a).
Subject to a variety of limitations and conditions, spouses may elect to file a
joint return after separate returns have been filed. See sec. 6013(b). According to
petitioner, the consent should be treated as a joint return for purposes of section
6015. Considering that the consent was, in effect, treated as a joint return by the
revenue agent who examined Mr. Rodriguez' return, petitioner's argument has
more than a little attraction. Nevertheless, we are unable to fit the round peg of
her argument into the square hole of technical requirements.
Generally, pursuant to section 6011(a) a taxpayer obligated to file a Federal
tax return must conform to the forms and regulations prescribed by respondent.
See sec. 1.6011-1(a), Income Tax Regs. Even though signed by petitioner and Mr.
Rodriguez, the consent is hardly a form described in section 6011 or section
1.6011-1, Income Tax Regs. Furthermore, a Form 4549 is not signed by the

taxpayer under penalties of perjury, one of the critical requirements for a
document to be treated as a Federal income tax return. See sec. 6065; see also

Beard v. Commissioner, 82 T.C. 766, 777 (1984), aff'd, 793 F.2d 139 (6th Cir.
1986); Deutsch v. Commissioner, T.C. Memo. 2006-27, aff'd, 478 F.3d 450 (2d

-8Cir. 2007). Petitioner's argument that the consent should be treated as a joint
return is rejected.
In closing we think it is appropriate to state that nothing in this Summary
Opinion should be taken as a comment as to the validity of the assessment made
against petitioner on the basis of the consent. Otherwise, because the tax liability
to which petitioner's request for section 6015 relief relates was not assessed
pursuant to a joint return, she is not entitled to the relief she seeks in this
proceeding.
To reflect the foregoing,
Decision will be entered
for respondent.

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