T.C. Summary Opinion 2013-13

UNITED STATES TAX COURT

JANE E. ZDUNEK, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 27966-10S. Filed February 20, 2013.

Jane E. Zdunek, pro se.

Robert J. Braxton, for respondent.

SUMMARY OPINION

ARMEN, Special Trial Judge: This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect when the petition
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was filed.1 Pursuant to section 7463(b), the decision to be entered is not reviewable

by any other court, and this opinion shall not be treated as precedent for any other

case.

Respondent determined a deficiency in petitioner’s 2007 Federal income tax

of $16,051 and an accuracy-related penalty under section 6662(a) of $3,210.2 The

deficiency derives from respondent’s disallowance of a $47,477 mortgage interest

deduction claimed by petitioner as an itemized deduction. 

After concessions by the parties (discussed below), the issues remaining for

decision are: (1) Whether petitioner may make a postpetition election to file a joint

return with her husband; (2) whether respondent bears the burden of proof with

respect to his deficiency determination; and (3) whether petitioner is liable for the

accuracy-related penalty under section 6662(a).

Background

Some of the facts have been stipulated, and they are so found. We

incorporate by reference the parties’ stipulation of facts and accompanying 

1

 Unless otherwise indicated, all subsequent section references are to the

Internal Revenue Code in effect for the year in issue, and all Rule references are to

the Tax Court Rules of Practice and Procedure.

2

 All dollar amounts are rounded to the nearest whole dollar.
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exhibits. Petitioner resided in the Commonwealth of Virginia when the petition was

filed. 

Petitioner, who holds a bachelor of science degree in accounting, was

employed by the Internal Revenue Service (IRS) for 15 years. At the IRS petitioner

worked as a revenue agent for seven to eight years until she was transferred to the

National Office Training Division, where she assisted in developing training

programs for revenue agents and tax auditors. Petitioner left employment with the

IRS in 1988.

Petitioner is a certified public accountant (C.P.A.) and has prepared tax

returns for compensation since 1988. Petitioner attends continuing professional

education (CPE) classes on tax law each year and took such classes in 2007. 

Petitioner has attended at least one CPE class that covered the mortgage interest

deduction.

In 2007 petitioner was employed full time as a financial controller for a

construction company in Frederick, Maryland, but also prepared 20 to 25 individual

income tax returns for compensation.

Petitioner prepared and filed a 2007 Federal income tax return listing her

filing status as married filing separately. Attached to that return was a Schedule A,

Itemized Deductions, on which petitioner claimed a $47,477 mortgage interest
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deduction related to a residence in Virginia and a second residence in West

Virginia.

In a notice of deficiency respondent disallowed the $47,477 mortgage interest

deduction. A Form 886-A, Explanation of Items, attached to the notice of

deficiency states: “Since * * * [petitioner] did not establish that the amount shown

was (a) interest expense, and (b) paid, the amount is not deductible.” 

In December 2010 petitioner filed a petition for redetermination with this

Court stating, inter alia: “I disagree with the disallowance in full of mortgage

interest claimed on Schedule A, as this interest was paid on mortgages secured by a

principal and a second residence, and did not exceed the limits for acquisition and

home equity indebtedness.” An attachment to the petition states: “[T]he acquisition

indebtedness on both the West Virginia and the Virginia homes is below the overall

limitation.” 

No later than April 20, 2011, petitioner spoke with respondent’s Appeals

Office regarding the possibility of settlement and was informed that the mortgage

interest deduction she claimed exceeded the limitations for a married-filing-separate

return. 

On August 29, 2012, petitioner’s case was tried to the Court.
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Discussion

I. Mortgage Interest Deduction

Pursuant to section 163(h), and as relevant herein, married individuals filing

separate returns may not deduct interest paid on acquisition indebtedness and home

equity indebtedness (as defined in section 163(h)) to the extent that the indebtedness

is in excess of the limitations provided by section 163(h)(3)(B)(ii) and (C)(ii). 

Specifically, section 163(h)(3)(B)(ii) provides that “[t]he aggregate amount treated

as acquisition indebtedness for any period shall not exceed $1,000,000 ($500,000 in

the case of a married individual filing a separate return).” Section 163(h)(3)(C)(ii)

provides that “[t]he aggregate amount treated as home equity indebtedness for any

period shall not exceed $100,000 ($50,000 in the case of a separate return by a

married individual).” 

In addition, married individuals filing separate returns are generally limited to

claiming one residence for purposes of the mortgage interest deduction unless they

obtain written consent from their spouse to claim another residence. See sec.

163(h)(4)(A)(ii)(II). 

For convenience, we shall refer to these limitations collectively as the MFS

limitations.
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Petitioner candidly testified that she did not apply the MFS limitations when

she claimed the $47,477 mortgage interest deduction on her 2007 married-filingseparate tax return. Respondent concedes that petitioner is entitled to a mortgage

interest deduction, albeit in a lesser amount than she originally claimed. 

Specifically, the parties now agree that petitioner is entitled to a mortgage interest

deduction of $29,494 with respect to her 2007 married-filing-separate return. 

A. Postpetition Change of Filing Status

Despite the parties’ aforementioned agreement, petitioner wishes to change

her filing status from married filing separately to married filing jointly so that she

and her husband may claim a greater overall mortgage interest deduction. In this

regard, however, section 6013(b)(2)(B) precludes the filing of a joint return after a

taxpayer files a separate return if the taxpayer files a timely petition with this Court

in respect of a notice of deficiency for the year for which the notice is issued. 

Respondent issued a notice of deficiency for 2007, and petitioner filed a petition

with this Court in respect of that taxable year. Accordingly, petitioner is now

precluded from filing a joint return for 2007. See sec. 6013(b)(2)(B).

Notwithstanding the bar of section 6013(b)(2)(B), petitioner contends that she

should be permitted to change her filing status to married filing jointly for 2007

because she was not informed of the MFS limitations by respondent until after she
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filed her petition with the Court. According to petitioner, if she had known of the

MFS limitations before filing her petition with the Court, then she would have filed

an amended return electing joint filing status, avoiding litigation. 

Petitioner cites no authority for her argument. Instead, petitioner frames her

argument in the context of cases in which we have found that there has been

surprise and substantial disadvantage to a taxpayer in the presentation of the

taxpayer’s case at trial because of how the notice of deficiency and pleadings were

drafted compared to the issues raised at trial. See, e.g., Estate of Horvath v.

Commissioner, 59 T.C. 551, 555 (1973) (“[O]nce surprise and substantial detriment

are found, the theory, whether a new reason or new issue, need not be heard by this

Court.”). 

In addition, although petitioner does not expressly argue that respondent’s

position is a “new matter” requiring respondent to bear the burden of proof, see

Rule 142(a), we shall consider such a contention in view of her pro se status and the

fact that she implicitly so contends, cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(Documents filed pro se are to be liberally construed.); Wilson v. Commissioner,

T.C. Memo. 2002-61, 2002 WL 341045, at *11, aff’d, 71 Fed. Appx. 623 (9th Cir.

2003).
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B. Surprise and Substantial Disadvantage

We acknowledged at the outset of trial, as we do again here, that

respondent’s wording on Form 886-A may not be a model of clarity. However, on

the basis of the pleadings and the record before us, we conclude that there was no

surprise or substantial disadvantage to petitioner in the presentation of her case at

trial, and we are satisfied that the MFS limitations issue is properly before this

Court.3 We discuss below the most relevant reasons that inform our decision.

First, petitioner alleged in her petition that the “mortgage interest claimed 

on Schedule A * * * was paid on mortgages secured by a principal and a second

residence, and did not exceed the limits for acquisition and home equity

indebtedness.” Moreover, an attachment to the petition states: “[T]he acquisition

indebtedness on both the West Virginia and the Virginia homes is below the 

overall limitation.” Respondent denied this allegation in his answer to the 

3

 Although petitioner does not invoke the doctrine of estoppel, we note that

the essential elements of such doctrine are not present in this case; thus, for

example, there is no indication that respondent made a false or misleading

representation. See Estate of Emerson v. Commissioner, 67 T.C. 612, 617-620

(1977) (outlining the elements of estoppel and acknowledging that estoppel should

be applied against the Commissioner “with the utmost caution and restraint.”); see

also Purcell v. United States, 1 F.3d 932 (9th Cir. 1993) (holding that estoppel does

not apply unless the aggrieved party demonstrates affirmative misconduct).
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petition. Thus, the MFS limitations issue was raised by the parties in their

pleadings. 

Second, petitioner candidly admitted at trial that she was informed of

respondent’s position, at the latest, when she spoke with respondent’s Appeals

Office at least 16 months before trial. Moreover, we are confident that, at the time

petitioner filed her petition, she was generally aware of the acquisition and home

equity indebtedness limitations provided by section 163(h) because she references

those limitations in her petition.

Finally, petitioner’s argument focuses exclusively on surprise and substantial

disadvantage as it relates to the examination of her 2007 tax return and the

subsequent issuance of the notice of deficiency, not the presentation of her case at

trial. Indeed, petitioner provides nothing to suggest that she suffered any prejudice

in terms of presenting her case to the Court at trial. Consequently, petitioner’s

situation is readily distinguishable from cases dealing with surprise and substantial

disadvantage. See, e.g., Estate of Horvath v. Commissioner, 59 T.C. 551 (where a

taxpayer first learned of the Commissioner’s new position at trial).

Therefore, we shall consider respondent’s position regarding petitioner’s

2007 married filing separate return.
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C. Burden of Proof

We have held that the Commissioner’s “determination may be affirmed for

reasons other than those assigned in his notice of deficiency.” Estate of Horvath v.

Commissioner, 59 T.C. at 555. However, the Commissioner bears the burden of

proof with respect to new matters. Rule 142(a). “[A] new position taken by

respondent is not necessarily a ‘new matter,’ especially when it merely clarifies or

develops the original determination without being inconsistent or increasing the

amount of deficiency.” Estate of Jayne v. Commissioner, 61 T.C. 744, 748 (1974)

(citing McSpadden v. Commissioner, 50 T.C. 478 (1969)).

Respondent asserts that his MFS limitations argument is covered by the

notice of deficiency, that it is not a new matter because it merely clarifies or

develops the original determination, that it is not inconsistent with such

determination, and that it does not increase the amount of the deficiency. 

Respondent also contends that his position does not require petitioner to present 

different facts at trial because the facts needed to determine petitioner’s mortgage

interest deduction have been fully stipulated. 

Because the pleadings and stipulated facts are sufficient to decide the

substantive issue in this case regardless of which party bears the burden of proof

and because we conclude that there was no surprise or substantial disadvantage to
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petitioner in the presentation of her case at trial, we decide this case without regard

to the burden of proof. See, e.g., Wilson v. Commissioner, 2002 WL 341045, at

*13.

D. Conclusion

In view of the foregoing, we conclude that petitioner is entitled to a mortgage

interest deduction of $29,494 for 2007, as agreed by the parties on a married-filingseparate return.

II. Accuracy-Related Penalty

Section 6662(a) and (b)(1) imposes a penalty equal to 20% of the amount of

any underpayment attributable to negligence or disregard of rules or regulations. 

The term “negligence” includes any failure to make a reasonable attempt to comply

with tax laws, and “disregard” includes any careless, reckless, or intentional

disregard of rules or regulations. Sec. 6662(c). The Commissioner bears the burden

of production, sec. 7491(c), but, if satisfied, the taxpayer bears the ultimate burden

of persuasion, Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001). 

Although petitioner elected married-filing-separate status when she 

prepared her return, she failed to apply the MFS limitations provided in section

163(h). Petitioner did not consult a tax adviser and testified that she did not 
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research the applicable law at the time that she prepared her return because she “felt

that [she] had a clear understanding of what it was.” Furthermore, petitioner

testified that she did not review the worksheet published by the Commissioner as an

aid in computing the proper mortgage interest deduction on a taxpayer’s marriedfiling-separate return. Rather, petitioner testified that she simply “figured it out”. 

On the basis of the record before us, and particularly in view of petitioner’s

education and experience as a tax professional, we hold that respondent has met his

burden of production. 

Section 6664(c)(1) provides an exception to the imposition of the accuracyrelated penalty if the taxpayer establishes that there was reasonable cause for, and

the taxpayer acted in good faith with respect to, the underpayment. Sec. 1.6664-

4(a), Income Tax Regs. The determination of whether the taxpayer acted with

reasonable cause and in good faith is made on a case-by-case basis, taking into

account the pertinent facts and circumstances. Sec. 1.6664-4(b)(1), Income Tax

Regs. Circumstances indicating that a taxpayer acted with “reasonable cause and

good faith include an honest misunderstanding of fact or law that is reasonable in

light of all of the facts and circumstances, including the experience, knowledge, and

education of the taxpayer.” Sec. 1.6664-4(b)(1), Income Tax Regs. 
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Generally, the most important factor is the extent of the taxpayer’s effort to assess

the proper tax liability. Id.

Although the record might support a finding of good faith on petitioner’s part,

the standard we are obliged to apply also requires the existence of reasonable cause. 

See sec. 6664(c)(1); sec. 1.6664-4(a), Income Tax Regs. Petitioner, a former IRS

revenue agent, has prepared tax returns for compensation since 1988. At all times

relevant, petitioner maintained a C.P.A. license and regularly attended CPE classes

on tax law, including at least one course on the mortgage interest deduction. In

2007 petitioner prepared tax returns for 20 to 25 individuals. Despite her

substantial experience, knowledge, and education, petitioner did not research the

applicable law with respect to the MFS limitations when she prepared her 2007

return. In light of all the facts and circumstances, we hold that petitioner has not

met her burden of persuasion with respect to reasonable cause. Accordingly,

petitioner is liable for the accuracy-related penalty under section 6662(a) on the

amount of the underpayment of tax to be computed as part of the Rule 155 process.4

4

 We note that our holding herein makes it unnecessary to consider

respondent’s alternative theory that petitioner is liable for the accuracy-related

penalty under sec. 6662(a) because of a substantial understatement of income tax. 

See sec. 6662(b).
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Conclusion

We have considered all of the arguments advanced by petitioner, and, to the

extent not expressly addressed, we conclude that those arguments do not support a

result contrary to our decision herein.

To give effect to our disposition of the disputed issues, as well as the

parties’ stipulation regarding the allowable amount (i.e., $29,494) of petitioner’s

mortgage interest deduction on her 2007 married-filing-separate return,

Decision will be entered

under Rule 155.