T.C. Summary Opinion 2009-125

UNITED STATES TAX COURT

JODY LYNN HARPER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18931-07S. Filed August 5, 2009.

Jody Lynn Harper, pro se.

Shirley M. Francis, for respondent.

DEAN, 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. 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. Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code. 
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1Petitioner and her former husband divorced in 2001.

2Petitioner sought review of respondent’s determinations for

1998 and 1999. Because petitioner did not timely file a request

for a sec. 6330 hearing for 1998, she was issued a decision

letter rather than a notice of determination. See sec. 301.6330-

(continued...)

The petition was filed in response to a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination). Petitioner seeks review

of respondent’s determination to sustain the proposed levy action

relating to her unpaid tax liability for 1999. 

Petitioner does not dispute the underlying tax liability for

1999. The issue for decision is whether it was an abuse of

discretion for respondent to deny petitioner’s request for relief

from joint and several liability under section 6015.

Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference. When the petition was

filed, petitioner resided in Oregon.

Petitioner and her former husband, Richard Lewis Fisher III,

filed a joint Federal income tax return for 1999. Respondent

assessed the 1999 tax liability against petitioner and her former

husband.1

In December 2004 petitioner filed a Form 8857, Request for

Innocent Spouse Relief, under section 6015 for 1999.2
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2(...continued)

1(i), Proced. & Admin. Regs. Therefore, the only year at issue

before the Court is 1999.

On December 29, 2005, respondent issued a Notice of

Determination Concerning Your Request for Relief from Joint and

Several Liability under Section 6015 (final notice of

determination), denying petitioner’s request for relief under

section 6015(b), (c), and (f). Petitioner did not file a

petition with the Court challenging respondent’s final notice of

determination. 

On November 23, 2006, respondent issued to petitioner a

Final Notice of Intent to Levy and Notice of Your Right to a

Hearing with respect to her unpaid tax liability for 1999.

On December 17, 2006, petitioner submitted to respondent

Form 12153, Request for a Collection Due Process Hearing under

section 6330 (section 6330 hearing), asserting that she had

previously requested relief from joint and several liability and

that she should be liable for only half of the unpaid tax.

On May 25, 2007, the Appeals officer sent petitioner a

letter acknowledging receipt of her Form 12153 and informing her

that a telephone section 6330 hearing was scheduled for June 21,

2007. The letter stated, in part, that “This call will be your

primary opportunity to discuss with me the reasons you disagree

with the collection action and/or discuss alternatives to the

collection action.” Additionally, respondent’s letter stated: 
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“We may also consider whether you owe the amount due, but only if

you have not otherwise had an opportunity to dispute it with

Appeals or did not receive a statutory notice of deficiency.”

On June 21, 2007, a telephone section 6330 hearing was held. 

During the telephone hearing, petitioner did not dispute owing

the unpaid tax liability for 1999 but rather reasserted that she

only “wants to pay half” of the liability.

On July 25, 2007, respondent issued the notice of

determination sustaining the proposed levy action. 

Discussion

Under section 6330(a), a taxpayer is entitled to notice and

opportunity for a hearing before levy action is taken by the

Commissioner in the process of collecting unpaid Federal taxes. 

When conducting a section 6330 hearing, the Appeals officer is

required to: (1) Obtain verification from the Secretary that the

requirements of applicable law and administrative procedure have

been met; (2) consider certain issues raised by the taxpayer such

as collection alternatives; and (3) consider whether any proposed

collection action balances the need for the efficient collection

of taxes with the legitimate concern of the taxpayer that any

collection action be no more intrusive than necessary. Sec.

6330(c). 

When the validity of the underlying tax liability is not at

issue, the Court reviews the Appeals officer’s determination
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under the abuse of discretion standard. Sego v. Commissioner,

114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176,

181-182 (2000). An abuse of discretion occurs when an Appeals

officer takes action that is arbitrary, capricious, or without

sound basis in fact or law. See Woodral v. Commissioner, 112

T.C. 19, 23 (1999).

Section 6330(c) prescribes the matters that a taxpayer may

raise at a section 6330 hearing. Under section 6330(c)(2)(A),

the taxpayer may raise any relevant issue relating to the unpaid

tax or the proposed levy including: (1) Appropriate spousal

defenses; (2) challenges to the appropriateness of collection

actions; and (3) offers of collection alternatives. Section

6330(c)(4), however, precludes a taxpayer from raising an issue

at a section 6330 hearing if the issue was raised and considered

at a previous administrative or judicial proceeding and the

taxpayer participated meaningfully in that proceeding. 

Additionally, section 301.6330-1(e)(2) and (3), Q&A-E4, Proced. &

Admin. Regs., provides that a “taxpayer may raise any appropriate

spousal defenses at a * * * [section 6330] hearing unless the

Commissioner has already made a final determination as to spousal

defenses in a * * * [final notice of determination].” 

On petitioner’s Form 12153 she states that she filed a

request for “innocent spouse relief”, and in her petition she

argues that she should be liable for only half of the unpaid
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3During the sec. 6330 hearing, petitioner did not file

another Form 8857 to request relief from joint and several

liability under sec. 6015. Pursuant to sec. 1.6015-5(b)(1),

Income Tax Regs., in order to request relief from joint and

several liability, “a requesting spouse must file Form 8857 or

other similar statement”. Thus, the requesting spouse is not

required to file a Form 8857, but can make a valid election by

submitting a similar written statement. Therefore, the Court

construes petitioner’s request as one for relief from joint and

several liability under sec. 6015. 

liability for 1999.3 Petitioner, nevertheless, admits and

respondent contends that a final notice of determination denying

her request for relief from joint and several liability was

issued on December 29, 2005. 

The regulations under section 6015 provide that pursuant to

section 6015(e), the requesting spouse may petition the Court to

review a denial of relief within 90 days after the Commissioner’s

final notice of determination is mailed. Sec. 1.6015-7(b),

Income Tax Regs.; see also Mora v. Commissioner, 117 T.C. 279

(2001). Petitioner, however, did not file a petition with the

Court challenging respondent’s determination within the 90 days

of the date of mailing the final notice of determination.

Consequently, the Court does not have jurisdiction to review

petitioner’s claim for relief from joint and several liability.

Moreover, because petitioner’s request for relief from joint

and several liability was considered and she received a final

notice of determination in a previous administrative proceeding,

she is effectively barred from raising her claim for “innocent
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4Petitioner does not allege that she did not participate

meaningfully in the initial sec. 6015 administrative proceeding.

spouse relief” in the subsequent section 6330 hearing.4 See sec.

6330(c)(4). Thus, the Appeals officer was not required to

consider petitioner’s request for relief from joint and several

liability during the section 6330 hearing.

The Appeals officer verified that all requirements of

applicable law and administrative procedure had been met and

balanced the need for the efficient collection of taxes with

petitioner’s legitimate concern that the collection action be no

more intrusive than necessary. See sec. 6330(c)(1), (3)(C);

Tufft v. Commissioner, T.C. Memo. 2009-59. Therefore, the

Appeals officer did not abuse her discretion in sustaining the

proposed levy against petitioner. 

Accordingly, the Court holds that respondent’s proposed levy

should be sustained.

Other arguments made by the parties and not discussed herein

were considered and rejected as irrelevant, without merit, or

moot.

To reflect the foregoing,

Decision will be entered

for respondent.