119 T.C. No. 11

UNITED STATES TAX COURT

RANIE M. RAYMOND, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2354-01L. Filed October 22, 2002.

On her 1991 tax return, P’s filing status was

listed as “Married filing separate return”. On Jan. 9,

2001, R sent P a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330

regarding the 1991 tax year in which R determined that

P was not entitled to raise a spousal defense because

she did not file a joint return. On Feb. 12, 2001, P

sent to the Tax Court a Petition for Lien or Levy

Action Under Code Section 6320(c) or 6330(d). R filed

a Motion for Partial Summary Judgment on the issue of

whether P is eligible for relief under I.R.C. sec.

6015.

Held: The petition was timely filed in order for

the Court to have jurisdiction to review R’s denial of

spousal relief. Sec. 6015(e)(1), I.R.C.

Held, further, R’s Motion for Partial Summary

Judgment is granted because there is no genuine issue

as to whether P is entitled to relief under I.R.C. sec.
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1 Unless otherwise indicated, all Rule references are to

the Tax Court Rules of Practice and Procedure, and all section

references are to the Internal Revenue Code in effect at all

relevant times.

2 The notice listed that petitioner owed $7,097.82 in

unpaid taxes for 1991 and $8,211.05 in penalties and interest for

that year.

6015. P is not entitled to relief under I.R.C. secs.

6015(b), (c), and (f) because she did not file a joint

return.

Ranie M. Raymond, pro se.

A. Gary Begun, for respondent.

OPINION

VASQUEZ, Judge: This case is before the Court on

respondent’s motion for partial summary judgment under Rule 121.1

Background

At the time of the filing of the petition, petitioner

resided in Livonia, Michigan. On her 1991 Federal income tax

return, petitioner’s filing status was listed as “Married filing

separate return”. At the time of the filing of the tax return,

no payment was made on the amount reported as due on the tax

return. Respondent applied petitioner’s tax refunds from 1995

and 1998 in partial satisfaction of the amount due for 1991.

On July 11, 2000, respondent sent petitioner a Final Notice: 

Notice of Intent to Levy and Notice of Your Right to a Hearing.2

On January 9, 2001, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320
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and/or 6330 (notice of determination) regarding her 1991 tax

year. In the notice of determination, respondent determined that

the collection against petitioner should be sustained because

petitioner did not file a joint return and, therefore, was not

entitled to raise a spousal defense.

On February 12, 2001, petitioner sent a letter to the Court

regarding the notice of determination. The Court received the

letter on February 16, 2001. The Court filed petitioner’s letter

as a Petition for Lien or Levy Action Under Code Section 6320(c)

or 6330(d) (petition). On March 14, 2001, the Court received

petitioner’s amended petition, which was filed as an Amended

Petition for Lien or Levy Action Under Code Section 6320(c) or

6330(d). 

On June 14, 2001, respondent filed a Motion to Dismiss for

Lack of Jurisdiction on the ground that the petition was not

filed within the time prescribed by section 6330(d). Petitioner

objected to this motion. On January 2, 2002, respondent filed a

Motion to Withdraw Respondent’s Motion to Dismiss for Lack of

Jurisdiction. On January 2, 2002, respondent also filed a Motion

for Partial Summary Judgment on the issue of whether petitioner

is eligible for relief under section 6015. On January 30, 2002,

petitioner filed a response to respondent’s motion for partial

summary judgment wherein petitioner objected to the granting of

the motion. 
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Discussion

Petitioner alleges that she signed a blank form, she did not

fill out the tax return, and she did not earn the income listed

on the tax return. Petitioner filed the petition to request

relief from liability under section 6015 for tax due on the

income listed on her tax return that she allegedly did not earn.

The issues presented are: (1) Whether the petition was

timely filed for this Court to have jurisdiction; and (2) whether

a taxpayer must file a joint return to be eligible for relief

under section 6015.

I. Jurisdiction

It is well settled that this Court can proceed in a case

only if we have jurisdiction and that any party, or the Court sua

sponte, can question jurisdiction at any time, even after the

case has been tried and briefed. Neely v. Commissioner, 115 T.C.

287, 290 (2000); Romann v. Commissioner, 111 T.C. 273, 280

(1998); Normac, Inc. & Normac Intl. v. Commissioner, 90 T.C. 142,

146-147 (1988); Brown v. Commissioner, 78 T.C. 215, 218 (1982).

Our jurisdiction under section 6330(d)(1) depends on the

issuance of a valid notice of determination and a timely petition

for review. Lunsford v. Commissioner, 117 T.C. 159, 165 (2001). 

Section 6330(d)(1) provides that a person may appeal a notice of

determination by filing a petition within 30 days of the notice. 

Sec. 6330(d)(1). 
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3 Petitioner sent her petition to the Tax Court 34 days

after respondent mailed her the notice of determination.

4 Sec. 6015(e)(1) provides, in pertinent part:

SEC. 6015(e). Petition for Review by Tax Court.--

(1) In General.--In the case of an individual against whom a

deficiency has been asserted and who elects to have subsection

(b) or (c) apply--

(A) In General.--In addition to any other remedy

provided by law, the individual may petition the Tax

Court (and the Tax Court shall have jurisdiction) to

determine the appropriate relief available to the

individual under this section if such petition is

filed--

(continued...)

We lack jurisdiction to review petitioner’s claim under

section 6330. Petitioner filed a petition with this Court later

than 30 days after the notice of determination.3 We have held

that the 30-day period provided by section 6330(d)(1) is

jurisdictional and cannot be extended. McCune v. Commissioner,

115 T.C. 114, 117 (2000).

However, petitioner raised a spousal defense in the Appeals

Office proceeding before the Commissioner made a final

determination. Sec. 6330(c)(2)(A)(i); sec. 301.6330-1(e)(2),

Proced. & Admin. Regs. In the notice of determination,

respondent determined that petitioner was not entitled to relief

under section 6015 because she did not file a joint return.

The timeliness of the petition, insofar as it seeks review

of the administrative denial of section 6015 relief, is,

therefore, dependent upon section 6015(e)(1).4 Under this
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4(...continued)

(i) at any time after the earlier of--

(I) the date the Secretary

mails, by certified or registered

mail to the taxpayer’s last known

address, notice of the Secretary’s

final determination of relief

available to the individual, or

(II) the date which is 6

months after the date such election

is filed with the Secretary, and

(ii) not later than the close of the

90th day after the date described in clause

(i)(I).

5 See sec. 301.6330-1(f)(2), Proced. & Admin. Regs. This

regulation provides:

Q-F2. With respect to the relief available to the

taxpayer under section 6015, what is the time frame

within which a taxpayer may seek Tax Court review of

Appeals’ determination following a CDP hearing?

A-F2. If the taxpayer seeks Tax Court review not only

of Appeals’ denial of relief under section 6015, but

also of relief with respect to other issues raised in

the CDP hearing, the taxpayer should request Tax Court

review within the 30-day period commencing the day

after the date of the Notice of Determination. If the

taxpayer only seeks Tax Court review of Appeals’ denial

of relief under section 6015, the taxpayer should

request review by the Tax Court, as provided by section

6015(e), within 90 days of Appeals’ determination. If

a request for Tax Court review is filed after the 30-

day period for seeking judicial review under section

6330, then only the taxpayer’s section 6015 claims may

(continued...)

section, we have jurisdiction to review respondent’s

determination as to section 6015 relief because petitioner filed

her petition within 90 days of the notice of determination.5
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5(...continued)

be reviewable by the Tax Court.

II. Motion for Partial Summary Judgment

Respondent moved for partial summary judgment on the issue

of whether petitioner is eligible for relief under section 6015. 

Respondent argues that petitioner is not entitled to relief under

section 6015 because she did not file a joint tax return.

Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy. 

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material fact

and a decision may be entered as a matter of law. See Rule

121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).

A. Relief Under Section 6015(b) and (c)

Relief is not available to petitioner under section 6015(b)

and (c) because petitioner did not file a joint return. Both 
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6 Sec. 6015(b) provides:

SEC. 6015(b). Procedures for Relief from

Liability Applicable to All Joint Filers.--

(1) In General.--Under procedures

prescribed by the Secretary, if--

(A) a joint return has been

made for a taxable year;

(B) on such return there is an

understatement of tax attributable

to erroneous items of 1 individual

filing the joint return;

(C) the other individual

filing the joint return establishes

that in signing the return he or

she did not know, and had no reason

to know, that there was such an

understatement;

(D) taking into account all

the facts and circumstances, it is

inequitable to hold the other

individual liable for the

deficiency in tax for such taxable

year attributable to such

understatement; and

(E) the other individual

elects (in such form as the

Secretary may prescribe) the

benefits of this subsection not

later than the date which is 2

years after the date the Secretary

has begun collection activities

with respect to the individual

making the election, 

then the other person shall be relieved of

(continued...)

sections explicitly require that a joint return be filed for

relief to be granted.6 Sec. 6015(b) and (c).
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6(...continued)

the liability for tax * * * for such taxable

year to the extent such liability is

attributable to such understatement. 

[Emphasis added.]

Sec. 6015(c) provides:

SEC. 6015(c). Procedures to Limit Liability for

Taxpayers No Longer Married or Taxpayers Legally

Separated or Not Living Together.--

(1) In General.--Except as provided in

this subsection, if an individual who has

made a joint return for any taxable year

elects the application of this subsection,

the individual’s liability for any deficiency

which is assessed with respect to the return

shall not exceed the portion of such

deficiency properly allocable to the

individual under subsection (d). [Emphasis

added.]

7 Sec. 6015(f) provides:

SEC. 6015(f). Equitable Relief.--Under procedures

prescribed by the Secretary, if--

(1) taking into account all the facts

and circumstances, it is inequitable to hold

the individual liable for any unpaid tax or

any deficiency (or any portion of either);

and

(2) relief is not available to such

individual under subsection (b) or (c), 

(continued...)

B. Relief Under Section 6015(f)

On its face, section 6015(f) does not require that a joint

return be filed in order for equitable relief to be granted under

that section.7 As directed by section 6015(f), the Commissioner
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7(...continued)

the Secretary may relieve such individual of such

liability.

8 The revenue procedure provides, in pertinent part:

4.01 Eligibility to be considered for equitable

relief. All of the following threshold conditions must

be satisfied before the Service will consider a request

for equitable relief under sec. 6015(f). * * *

(1) The requesting spouse filed a joint return

for the taxable year for which relief is sought; * * *.

uses procedures under Rev. Proc. 2000-15, 2000-1 C.B. 447 (the

revenue procedure), to determine whether an individual qualifies

for relief under that section. Section 4.01 of the revenue

procedure lists seven threshold conditions, including the filing

of a joint return, that must be satisfied before the Commissioner

will consider a request for relief under section 6015(f).8

The legislative history of section 6015 further demonstrates

that Congress intended a joint return requirement to apply to

section 6015(f). The conference agreement accompanying the

enactment of section 6015(f) contemplates that a joint return be

filed as a prerequisite for the grant of equitable relief. H.

Conf. Rept. 105-599, at 254 (1998), 1998-3 C.B. 747, 1008. The

agreement stated:

The conference agreement does not include the

portion of the Senate amendment that could provide

relief in situations where tax was shown on a joint

return, but not paid with the return. The conferees

intend that the Secretary will consider using the grant

of authority to provide equitable relief in appropriate

situations to avoid the inequitable treatment of

spouses in such situations. * * *
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The conferees do not intend to limit the use of

the Secretary’s authority to provide equitable relief

to situations where tax is shown on a return but not

paid. The conferees intend that such authority be used

where, taking into account all the facts and

circumstances, it is inequitable to hold an individual

liable for all or part of any unpaid tax or deficiency

arising from a joint return. * * * [Emphasis added.]

Id. The agreement clarifies that the conferees intended that

relief may be granted if it is inequitable to hold the taxpayer

liable for the unpaid tax or deficiency shown on a joint return.

This requirement of a joint return is also consistent with

the caption to section 6015, Relief From Joint and Several

Liability on Joint Return.

We, therefore, conclude that a joint return must be filed in

order for a taxpayer to be granted equitable relief under section

6015(f). 

As a result, we shall grant respondent’s motion for partial

summary judgment because no genuine issue exists as to whether

petitioner is entitled to relief under section 6015. Petitioner

is not entitled to relief under section 6015 because she did not

file a joint return. Because respondent’s motion for partial

summary judgment covers the remaining issues in the instant case,

we treat it as a motion for full summary judgment, which we shall

grant.

To reflect the foregoing,

An appropriate order and

decision will be entered.