internal_revenue_service number release date index numbers ------------------------ --------------------------------------------- -------------------------- ---------------------------------- --------------------------------- department of the treasury washington dc third party communication none date of communication not applicable_person to contact --------------------- id no ----------------- telephone number -------------------- refer reply to cc corp b03 plr-128754-11 date date legend legend parent ----------------------------------------------------------- -------------------------------------------------------------------- --------------------------- target -------------------------------- ----------------------- ------------------------------------------------------------------- target sub target sub target sub newco -------------------------------------------------- ----------------------- ------------------------------- ------------------------------------ ----------------------- ------------------------------- ---------------------------------- ----------------------- ------------------------------- ---------------------------------------- -------------- ------------------------------------------------------------------- newco ---------------------------------------- -------------- ------------------------------------------------------------------- newco ----------------------------- -------------- plr-128754-11 ------------------------------------------------------------------- foreign sub ----------------------------------------------------------- -------------------------------------------------------------------- -------------------------------- amalco -------------------------------- ----------------------- ------------------------------------------------------------------- date date date date date date date state a country a x y z a b c d e f --------------------- --------------------- ------------------- ---------------- -------------------------- ------------------ ------------------ -------------- ---------- -- -- -- ---------------------------------- ---------------------------------- ------------------- --------------- --- --------------- plr-128754-11 g h i j k l m n o p q r s t ------------------- --------------- --------------- ----------------- ----------------- ----------------- --------------- ------------- --------------- ----------------- ----------------- ----------------- -- ----------------- dear --------------- this letter responds to a letter from your authorized representative dated date requesting rulings concerning a consummated transaction described below the information submitted in that request and in subsequent correspondence is summarized below the rulings contained in this letter are based on facts and representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party this office has not verified any of the materials submitted in support of the request for rulings verification of the information representations and other data may be required as part of the audit process facts plr-128754-11 prior to date parent was an s_corporation incorporated in state a with a number of domestic and foreign subsidiaries disregarded entities and partnerships parent had three classes of voting common_stock outstanding class x class y and class z on date as described below parent became a publicly-traded c_corporation and the common parent of a consolidated_group the parent group target was a publicly-traded country a corporation before date target had a shares of common_stock and b shares of voting convertible preferred_stock outstanding target also had two series of warrants the warrants outstanding that expire on date target owned all of the shares of target sub and foreign sub and all of the units of target sub target sub was the common parent of a consolidated_group the target sub group target sub was a single member limited_liability_company treated as a c_corporation for federal_income_tax purposes foreign sub was an entity disregarded from target for federal_income_tax purposes target sub owned all of the stock of target sub the taxpayer has requested rulings on the transaction described below the transaction the transaction i ii iii on date newco a new country a corporation was incorporated on behalf of and transferred to parent for dollar_figurec a de_minimis amount also on date newco also a new country a corporation was incorporated on behalf of and transferred to newco for dollar_figured a de_minimis amount on date newco a country a shelf corporation incorporated on behalf of newco on date was transferred to newco for dollar_figured prior to step iii below approximately e percent of the preferred shareholders of target exchanged their preferred shares for common shares of target the following steps occurred on date newco and target amalgamated under country a law creating amalco the target amalgamation newco received one common share of amalco and target common shareholders received or were deemed to have received f redeemable nonvoting preferred shares of amalco the amalco redeemable preferred shares the preferred shareholders of target that remained after step ii received preferred shares of amalco identical to their target shares the former assets of target constituted in excess of percent of the assets of amalco iv parent subscribed for g common shares of newco with h parent class x shares and cash of dollar_figurei and newco subscribed for g common shares of newco with h parent class x shares and cash of dollar_figurei plr-128754-11 v vi vii newco acquired the f amalco redeemable preferred shares from the target common shareholders with h parent class a shares and cash of dollar_figurei parent and amalco’s bank debt was refinanced as part of the debt refinancing parent borrowed from a third-party bank and loaned a portion of the funds to each of amalco dollar_figurej and target sub dollar_figurek amalco and target sub used such funds to repay their third-party bank debt and make the payments in step viii parent borrowed additional funds from a third-party bank parent declared and paid a dividend of dollar_figurel the dividend was paid to persons who held the class x class y and class z shares immediately prior to the amalgamation viii amalco and target sub used the cash received in step vi to redeem the warrants for dollar_figurem redeem the remaining voting convertible preferred shares of amalco for dollar_figuren and make payments of dollar_figureo to certain employees in exchange for the disposition of and surrender by the holders of restricted share units and deferred share units issued under target’s restricted share unit plan and target’s deferred share unit plan ix x amalco redeemed the f amalco redeemable preferred shares from newco in exchange for a note in the amount of dollar_figurep the note was immediately converted by newco into f amalco common shares amalco sold all of the shares of target sub and foreign sub and all of the units of target sub to parent in exchange for cash of dollar_figureq dollar_figurer and dollar_figures respectively amalco used the cash to repay its intercompany debt of dollar_figurej owed to parent the remaining cash of dollar_figuret was distributed by amalco to newco followed by a distribution of such cash by newco to newco followed by a distribution of such cash by newco to parent representations the following representations have been made regarding the transaction a the fair_market_value of the stock of amalco received by target shareholders in connection with the target amalgamation was approximately equal to the fair_market_value of the target stock surrendered in the exchange all warrants options convertible securities and other rights pursuant to which any person could acquire stock in target target options that were outstanding immediately prior to the target amalgamation were converted into the right to acquire stock in amalco amalco options plr-128754-11 b as a result of the target amalgamation former target shareholders owned greater than percent of the total outstanding_stock of amalco and amalco options and owned such stock and amalco options solely by reason of their ownership of target stock and target options immediately prior to the target amalgamation c the only consideration issued by amalco in the target amalgamation was amalco stock and amalco options d immediately after the target amalgamation amalco possessed the same assets and liabilities as those possessed by target immediately prior to the target amalgamation in addition to the nominal assets possessed by newco immediately prior to the target amalgamation the assets possessed by newco immediately prior to the target amalgamation in the aggregate constituted less than one percent of the net assets of amalco immediately after the target amalgamation e the liabilities of target assumed within the meaning of sec_357 by amalco plus the liabilities if any to which the transferred assets were subject were incurred by target in the ordinary course of its business and were associated with the assets transferred f the target shareholders paid their own expenses if any incurred in connection with the target amalgamation g target was not at the time of the target amalgamation under the jurisdiction of a court in a title_11_or_similar_case within the meaning of sec_368 h target was not a controlled_foreign_corporation within the meaning of sec_957 before the target amalgamation amalco was not a controlled_foreign_corporation within the meaning of sec_957 immediately after the target amalgamation i before the target amalgamation target was not a passive_foreign_investment_company a pfic within the meaning of sec_1297 immediately after the target amalgamation amalco was not a pfic within the meaning of sec_1297 j the target amalgamation was not an exchange described in sec_1_367_b_-4 sec_1_367_b_-4 or sec_1_367_b_-4 plr-128754-11 k target did not immediately before the target amalgamation and amalco did not immediately after the target amalgamation hold any u s real_property interests as defined in sec_897 l as of the beginning of the day on date the outstanding_stock of target was not owned by persons the ownership of whose stock would under sec_318 other than sec_318 be attributed to newco m there was as of date no plan or intention for newco or amalco to cease to remain in existence as a separate corporation n parent had and continues to have no plan or intention to liquidate or to distribute the stock of newco to its shareholders o as of date newco had no plan or intention to dispose_of the stock of amalco p on date parent filed an election under sec_338 with respect to newco 2’s acquisition of the stock of amalco sec_338 elections were also filed with respect to all non-u s subsidiaries of target except for the non- u s subsidiaries owned by the u s subsidiaries of target no elections under sec_338 were filed with respect to the u s subsidiaries of target q parent was a subchapter_s_corporation within the meaning of sec_1361 immediately prior to the transaction r no party to the transaction acted or will act with a principal purpose contrary to the purposes of sec_1_1502-76 to substantially reduce the federal_income_tax liability of any person s no election was made nor will one be made to ratably allocate items of income gain loss deduction or credit under paragraphs b ii or b iii of sec_1_1502-76 t parent and its affiliates filed a consolidated_return for the taxable_year ending date u the target sub group terminated as a result of step x of the transaction plr-128754-11 when the stock of target sub was acquired by parent rulings based solely on the information submitted and the representations set forth above we rule as follows regarding the transaction the target amalgamation qualified as a reorganization under sec_368 target and amalco were each a_party_to_a_reorganization under sec_368 no gain_or_loss was recognized by target on the transfer of its assets to amalco in exchange for amalco stock and the assumption_of_liabilities in the target amalgamation sec_361 and sec_357 no gain_or_loss was recognized by amalco on the receipt of the target assets in exchange for amalco stock sec_1032 the basis of each asset received by amalco in the target amalgamation was equal to the basis of that asset in the hands of target immediately before the target amalgamation sec_362 the holding_period of each asset received by amalco in the target amalgamation includes the period during which target held that asset sec_1223 no gain_or_loss was recognized by target on the distribution or deemed_distribution of the amalco stock to its shareholders sec_361 no gain_or_loss was recognized by target shareholders in the target amalgamation sec_354 the basis of the amalco redeemable preferred shares received or deemed received by target shareholders in exchange for the target stock was equal to the basis of the target stock exchanged therefor sec_358 and sec_1_358-2 the holding_period of the amalco redeemable preferred shares in the hands of the target shareholders in the target amalgamation includes the holding_period of the target stock exchanged therefor provided the target stock plr-128754-11 was held by target shareholders as a capital_asset on the date of the target amalgamation sec_1223 amalco succeeded to and took into account the tax_attributes of target described in sec_381 subject_to the conditions and limitations specified in sec_381 sec_382 sec_383 and sec_384 and the regulations thereunder sec_381 and sec_1_381_a_-1 newco 2’s acquisition of the stock of amalco was a qualified_stock_purchase within the meaning of sec_338 parent as common parent of the consolidated_group of which newco was a member was eligible to make the election under sec_338 in respect of newco 2’s qualified_stock_purchase of amalco provided that a sec_338 election was made with respect to the qualified_stock_purchase of amalco a sec_338 election was permissible for any directly owned subsidiary of amalco of which amalco owned stock meeting the requirements of sec_1504 a direct amalco subsidiary if a sec_338 election was made for a direct amalco subsidiary a sec_338 election was permissible for any direct subsidiary of such direct amalco subsidiary or subsidiaries of which the direct amalco subsidiary or subsidiaries owned stock meeting the requirements of sec_1504 a lower tier amalco subsidiary if a sec_338 election was made for a lower tier amalco subsidiary a sec_338 election was permissible for any direct subsidiary of a lower tier amalco subsidiary or subsidiaries of which the lower tier amalco subsidiary or subsidiaries owned stock meeting the requirements of sec_1504 also a lower tier amalco subsidiary the first day of the taxable_year of the parent group was date sec_1_1502-76 the items of income gain loss deduction and credit of parent including the income gain loss deduction and credit of parent’s qualified subchapter_s subsidiaries are assigned to parent’s last year as an s_corporation and to parent’s first taxable_year as a member of the parent group on the basis of parent’s normal method_of_accounting as determined under sec_446 sec_1_1502-76 plr-128754-11 the parent group’s consolidated_return for the taxable_year ending date includes the items of income gain loss deduction and credit of the parent group’s subsidiary members for the portion of their respective taxable years without taking into account any closing of their tax years as a result of their joining the parent group of which they were members of the parent group the income gain loss deduction and credit of the parent group’s subsidiary members for the portion of their respective taxable years without taking into account any closing of their taxable years as a result of their joining the parent group of which they were not a member of the parent group are included in a separate_return including the consolidated_return of another group sec_1_1502-76 caveats no opinion is expressed concerning the tax treatment of the transaction under other provisions of the code or regulations or the tax treatment of any conditions existing at the time of or effects resulting from the transaction that are not specifically covered by the above rulings this ruling is directed only to the taxpayer requesting it sec_6110 provides that it may not be used or cited as precedent a copy of this letter must be attached to any income_tax return to which it is relevant alternatively taxpayers filing their returns electronically may satisfy this requirement by attaching a statement to their return that provides the date and control number of this ruling letter pursuant to the power_of_attorney on file in this office copies of this letter are being sent to your authorized representatives sincerely ken cohen senior technician reviewer branch office of associate chief_counsel corporate cc


t c memo united_states tax_court daniela aldea petitioner v commissioner of internal revenue respondent docket no filed date daniela aldea pro_se jeremy mcpherson for respondent memorandum opinion dean special_trial_judge respondent determined a deficiency of dollar_figure in petitioner’s federal income taxes unless otherwise indicated 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 after concessions the issues for decision are whether petitioner is entitled to a deduction for charitable_contributions unreimbursed employee automobile petitioner is entitled to deduct amway business some of the facts have been the stipulation of facts and the incorporated herein by reference fairfield california whether petitioner is entitled to deduct expenses and whether automobile expenses from her stipulated and are so found attached exhibits are petitioner resided in at the time her petition was filed background in petitioner resided in yuba city worked as an apprentice ironworker through a union hall located in sacramento worked in various locations in california during days in salinas days in modesto francisco between the morning and if drive from the union hall to the days in santa cruz days in stockton there was work available california and she received job assignments california and including days in sacramento and days in san jobs petitioner reported to the union hall in she would then job site after obtaining work petitioner reported directly to the job site until the job was completed on schedule a individual_income_tax_return itemized_deductions of her form_1040 u s petitioner claimed itemized - deductions of dollar_figure in addition to claiming deductions for taxes paid petitioner claimed deductions for dollar_figure in charitable gifts made to her churches and dollar_figure in unreimbursed employee_expenses related to her job as an ironworker petitioner included in the unreimbursed employee_expenses a deduction for dollar_figure in automobile expenses based on miles driven from her home in yuba city to the union hall in sacramento and from her home to each of the various job sites petitioner used the standard rate of cents per mile to compute the deduction during petitioner also was engaged in marketing amway products she reported gross_income of dollar_figure and expenses of dollar_figure from her amway activity on schedule c profit or loss from business the expenses included dollar_figure for vehicle expenses dollar_figure for utilities and dollar_figure for seminars tapes and books in the notice_of_deficiency respondent disallowed dollar_figure of petitioner’s schedule a itemized_deductions and dollar_figure of petitioner’s schedule c deductions respondent’s determinations reduced petitioner’s itemized_deductions to an amount less than the allowable standard_deduction petitioner’s tax_liability therefore was determined using the standard_deduction for although the parties stipulated that petitioner claimed automobile mileage deductions for big_number miles petitioner’s form 2106-ez unreimbursed employee_expenses indicates that she deducted the standard mileage rate for big_number miles q4e- respondent concedes that petitioner is entitled to a deduction of dollar_figure for job-seeking expense based on the big_number miles driven by petitioner between her home in yuba city and the union hall in sacramento during periods when petitioner was engaged in job hunting the parties agree that petitioner is entitled to additional itemized_deductions of dollar_figure for education expenses dollar_figure for safety equipment dollar_figure for union dues and dollar_figure for work tools petitioner concedes that she is not entitled to a deduction for uniforms and cleaning thus the only remaining issues regarding petitioner’s itemized_deductions are whether she is entitled to a deduction of dollar_figure for charitable_contributions and whether she is entitled toa deduction of dollar_figure for miles she claims she drove to and from temporary work assignments with regard to petitioner’s loss from amway activity reported on schedule c petitioner has conceded that she is not entitled to deductions for seminar expenses beyond the dollar_figure allowed by respondent the only remaining issue concerning petitioner’s schedule c deductions is whether petitioner is entitled to dollar_figure of the vehicle expenses she claimed discussion deductions are strictly a matter of legislative grace and taxpayers must satisfy the specific requirements for any deduction claimed see indopco inc v commissioner u s - - 292_us_435 taxpayers are required to maintain records sufficient to substantiate their claimed deductions see sec_6001 sec_1_6001-1 income_tax regs charitable_contributions sec_170 allows a deduction for charitable_contributions paid during the taxable_year subject_to certain limitations deductions for charitable_contributions are allowable only to the extent verified under treasury regulations see sec_170 the applicable regulations regquire a taxpayer to maintain for each contribution of money a canceled check a receipt from the donee organization showing the date and amount of the contribution or other reliable written records showing the name of the donee and the date and amount of the contribution see sec_1_170a-13 income_tax regs petitioner has not maintained any of the records required to substantiate her charitable_contributions she testified at trial that she made cash contributions to romanian churches dollar_figure to the new assembly church and dollar_figure to the first romanian pentecostal church the only other evidence of petitioner’s contributions consists of a calendar marked with the notation church and a dollar amount usually dollar_figure on each sunday and two handwritten letters from two different individuals stating that petitioner -- - attends their churches regularly the notations on the calendar do not indicate the churches to which contributions were made moreover we are not convinced the notations were made contemporaneously on the calendar the letters do nothing to support petitioner’s claims as they do not identify a church or indicate that petitioner made any contributions we are not convinced from the record that petitioner made charitable_contributions in we thus uphold respondent’s determination that petitioner is not entitled to deductions for charitable_contributions unreimbursed employee automobile expenses petitioner contends that she is entitled to deduct the standard mileage rate for the miles she drove between her residence and her various temporary work sites because of the temporary nature of her employment respondent does not dispute that petitioner’s employment was temporary and concedes that a taxpayer may deduct daily transportation_expenses incurred in going between the taxpayer’s residence and a temporary_work_location outside the metropolitan area where the taxpayer lives and normally works respondent however contends petitioner is not entitled to deduct transportation_expenses because she did not have a single metropolitan area where she normally worked and therefore all of her transportation costs for traveling between her home and the temporary work locations are - nondeductible personal commuting expenses sec_162 allows a deduction for all the ordinary and necessary expenses paid_or_incurred during the taxable_year in carrying_on_a_trade_or_business sec_262 however provides that no deduction is allowed for personal living or family_expenses in general the cost of daily commuting to and from work is a nondeductible personal_expense see 326_us_465 sec_1_162-2 income_tax regs respondent’s position in the case at hand is consistent with the two-prong test of revrul_94_47 1994_2_cb_18 in order for expenses for transportation between the taxpayer’s residence and her job site to be deductible under this test the taxpayer must establish that her employment at a job site is temporary and the job site is outside the metropolitan area where the taxpayer lives and normally works see id in previous cases respondent has challenged the deductibility of transportation costs on the basis that the employment at issue was not temporary therefore our inquiry generally has not focused on the second prong of the test the court however in harris v commissioner tcmemo_1980_56 the two-prong test was first announced in rev_rul 1953_2_cb_303 and later amplified and clarified by rev ruls 1990_1_cb_28 and 1994_2_cb_18 respondent’s position also is consistent with revrul_99_7 1999_5_irb_4 released after the year in issue revrul_99_7 obsoletes rev_rul and modifies rev ruls and - - affd in part and remanded in part without published opinion 679_f2d_898 9th cir found that the taxpayer who relied on rev_rul supra to support the deductibility of his transportation_expenses was not entitled to such deductions because he had not established that the work sites at issue were outside the general area of his principal or regular place of employment we thus found without determining whether the jobs were temporary that the taxpayer was not entitled to deduct transportation_expenses see harris v commissioner supra in the present case petitioner points to our finding in 66_tc_467 as support for her position that the temporary nature of her employment is sufficient in and of itself to entitle her to deductions for commuting expenses our disposition of norwood however was based on the parties’ framing of the issues thus the sole focus of our inguiry was whether the employment was temporary see id pincite petitioner also relies on respondent’s position in revrul_60_189 1960_1_cb_60 revrul_60_189 is irrelevant to petitioner’s case as it concerns expenses_incurred while 747_f2d_46 n 1st cir indicates that the court_of_appeals for the ninth circuit remanded harris v commissioner tcmemo_1980_56 affd in part and remanded in part without published opinion 679_f2d_898 9th cir because it questioned whether the evidence supported our findings_of_fact and not because the court_of_appeals for the ninth circuit disagreed with the two-prong test as a matter of law --- - traveling away from home and is factually distinguishable from petitioner’s situation finally petitioner points to revrul_94_47 c b pincite as support for her position but the relevant portion of the revenue_ruling supports respondent’s position a taxpayer may deduct daily transportation_expenses incurred in going between the taxpayer’s residence anda temporary_work_location outside the metropolitan area where the taxpayer lives and normally works respondent denied petitioner’s deduction for transportation_expenses from her residence to her temporary work locations because petitioner does not ordinarily work in the metropolitan area in which she lives respondent’s denial is consistent with his position in relevant revenue rulings respondent has not conceded that the temporary nature of a job in and of itself is a sufficient basis for transportation_expenses to be deductible petitioner has not established any business reason for living in yuba city her decision to live there was entirely personal cf 55_tc_783 the record does not indicate that petitioner ever worked in had the prospect of work in or had any other business tie to yuba city the union hall where petitioner received her job assignments was in sacramento which is south of yuba city and travel away from home under sec_162 requires that the taxpayer either remain away overnight or for a period requiring sleep or rest see 389_us_299 -- - all of petitioner’s work sites were south of sacramento accordingly we uphold respondent’s determination that petitioner is not entitled to deduct automobile expenses for transportation to her temporary jobsites schedule c automobile expenses respondent contends petitioner is not entitled toa deduction for dollar_figure of the dollar_figure in car and truck expenses she claimed on her schedule c because she has not substantiated the mileage she drove for her amway activities nor has she presented evidence of the total miles she drove during petitioner maintains that she has substantiated mileage from her amway activity and thus is entitled to a deduction for the full dollar_figure she claimed on her return sec_274 imposes stringent substantiation requirements for claimed deductions relating to the use of listed_property which is defined under sec_280f a to include passenger automobiles under this provision any deduction claimed with respect to the use of a passenger_automobile will be disallowed unless the taxpayer substantiates specified elements of the use by adequate_records or by sufficient evidence corroborating the taxpayer’s own statement see sec_274 sec_1_274-5t temporary income_tax regs fed reg date these substantiation requirements supersede the doctrine found in cohan v commissioner f 2d 2d cir under which we may approximate expenses in certain cases where the exact amount of expense cannot be determined see sec_1_274-5t temporary income_tax regs fed reg date the elements that must be substantiated to deduct business use of an automobile are the amount of the expenditure the mileage for each business use of the automobile and the total mileage for all use of the automobile during the taxable_period the date of the business use and the business_purpose of the use of the automobile see sec_1_274-5t temporary income_tax regs fed reg date to meet the adequate_records requirements of sec_274 a taxpayer must maintain some form of records and documentary_evidence that in combination are sufficient to establish each element of an expenditure or use see sec_1_274-5t temporary income_tax regs fed reg date a contemporaneous log is not reguired but corroborative evidence to support a taxpayer's reconstruction of the elements of expenditure or use must have a high degree of probative value to elevate such statement to the level of credibility of a contemporaneous record sec_1_274-5t temporary income_tax regs fed reg date petitioner testified that she carried a calendar with her in her car and filled it out each day recording any amway business -- activity she conducted she further testified that she carried a business miles log to all of her amway activities during and made contemporaneous notes of the activities in the log the entries in the log and the notations on the calendar generally indicate the miles driven to show marketing plan or to attend seminar rally the mileage entries in the log are preceded by the notation rt which petitioner testified stands for round trip but further explained really denotes the one-way mileage to her destinations when questioned about the pristine condition of the log and the fact that all entries in the log appear to have been made with the same pen petitioner explained that she carried the log in a case with a pen on the basis of the record as a whole we find that petitioner has not substantiated all the reguired elements of her automobile use her records are not reliable and her testimony lacks credibility although petitioner’s records purport to provide the dates of business use of her automobile miles driven for each business use and evidence of business_purpose petitioner has not provided the total mileage for all use of her automobile during see sec_1_274-5t temporary income_tax regs fed reg date thus she has not substantiated all the elements required by the temporary regulations promulgated under sec_274 we also question the reliability of the information recorded in petitioner’s records despite petitioner’s testimony we find it unlikely that the records were made contemporaneously with the activities recorded given the condition of the mileage log the appearance of the entries in the log and the mistakes in the log when asked at trial how she was able to contribute dollar_figure toa church in yuba city on date as indicated by her calendar and by her testimony when her log indicates she was in long beach on march and petitioner testified that she was actually in long beach on march and there are other reasons to question the reliability of petitioner’s records according to petitioner’s testimony and her mileage logs on date she drove a total of miles to and from a job site in santa cruz california put in hours of work and after returning home drove miles round trip to and from bakersfield california to attend a seminar rally for amway petitioner further testified that on days when she had to travel that far she would usually work a half day or less it nonetheless is difficult to believe that petitioner was able to drive miles in day perform her duties as an ironworker even if only for a half day and attend an amway seminar similarly petitioner’s records indicate that on date she drove a total of miles and on date a total of miles while performing her job duties and attending amway seminars on both days petitioner’s records and her explanation of the records indicate that she drove well over miles a day on many of the days she worked at temporary job sites as an ironworker and conducted amway activities we find it unlikely petitioner was able to sustain such activity ona regular basis accordingly we find petitioner is not entitled to mileage deductions beyond those allowed by respondent to reflect the foregoing decision will be entered under rule


t c memo united_states tax_court donna c clevenger petitioner v commissioner of internal revenue respondent docket no filed date donna c clevenger pro_se richard a rappazzo for respondent memorandum opinion dawson judge this case was assigned to special_trial_judge norman h wolfe pursuant to the provisions of sec_7443a and rule sec_180 sec_181 and sec_183 all section references are to the internal_revenue_code in effect for the tax years in issue unless otherwise indicated all rule references are to the tax_court rules_of_practice and procedure the court agrees with and adopts the opinion of the special_trial_judge which is set forth below opinion of the special_trial_judge wolfe special_trial_judge this matter is before the court on respondent's motion to dismiss for lack of jurisdiction petitioner contends that this court lacks jurisdiction because the notice_of_deficiency mailed to her by respondent was not sent to her last_known_address within the meaning of sec_6212 respondent's position is that this court lacks jurisdiction because petitioner failed to file a timely petition within the time prescribed in sec_6213 or sec_7502 background respondent determined deficiencies in petitioner's federal income taxes for the taxable years and and additions to tax as follows year deficiency addition_to_tax sec_6653 sec_6654 dollar_figure big_number big_number dollar_figure dollar_figure big_number big_number the evidence in this case consists of a stipulation of facts with attached exhibits incorporated herein by reference and oral testimony presented at the hearing on the parties' cross- motions respondent's notice_of_deficiency is dated date the petition in this case was filed on date that is big_number days or approximately years after the mailing of the notice_of_deficiency petitioner resided in peoria arizona when her petition was filed petitioner filed an amended petition pertaining to those same years through on date respondent's notice_of_deficiency was sent to petitioner by certified mail addressed as follows donna clevenger bell avenue lakeview california hereafter the bell avenue address respondent asserts that this address was on petitioner's last filed tax_return the property located at the bell avenue address consisted of a mobile home that was owned by petitioner and her husband and was situated on acres of land petitioner resided with her husband coy a clevenger at all times at issue and until his death in petitioner's last filed return prior to the issuance of the statutory_notice_of_deficiency was the return filed jointly with her husband on date petitioner did not file a federal_income_tax return either individually or jointly with her husband for the taxable years and at respondent's request the fresno service_center the service_center with which petitioner was required to file her federal_income_tax returns during the years at issue conducted a diligent search of its records and determined that the original as well as any copies of any joint income_tax returns form_1040 filed by petitioner for the years prior to and including the taxable_year had been routinely destroyed by respondent after a 7-year retention period petitioner did not produce a copy of her joint income_tax return at trial there is no evidence in the record that the notice_of_deficiency ever was returned to respondent as undeliverable petitioner claims that at the time of the issuance of the notice_of_deficiency in date her last_known_address to which the notice_of_deficiency should have been sent was apricot avenue nuevo california hereafter the apricot address according to petitioner she and her husband moved from the bell avenue address to the apricot address in mid- date and therefore the apricot address would have been the address on her joint income_tax return petitioner testified that the property located at the apricot address was a horse ranch known as solar view farms owned by rick fritz petitioner claims that she and her husband lived in a house on the property in exchange for taking care of the ranch and the horses mr fritz did not testify at the hearing on date petitioner and her husband filed a voluntary petition in bankruptcy with the u s bankruptcy court for the central district of california on date petitioner and her husband filed with the bankruptcy court a statement of affairs of debtor not engaged in business dated and executed on date in which petitioner and her husband stated that they resided at the bell avenue address from until date on date petitioner and her husband also executed a statement of compensation paid for assistance in connection with the filing of the bankruptcy case pursuant to local bankruptcy rule promptly thereafter filed with the bankruptcy court this statement identified the bell avenue address as real_property owned by petitioner and her husband as of the date of the filing of the bankruptcy petition and as property exempt pursuant to u s c sec_522 supp ii as the residence of the debtor or a dependent of the debtor petitioner and her husband were discharged from bankruptcy on date on date petitioner wrote to the internal_revenue_service problem resolution office in laguna nigel california and requested audit reports in response on date personnel of that office sent petitioner copies of her audit reports for the taxable years and a copy of the original notice_of_deficiency dated date was included with the audit reports received by petitioner ernest avilla avilla worked as the postmaster for the post office in nuevo california hereafter the nuevo post office from through his job functions as postmaster included traveling to the lakeview post office approximately once a week to observe the postal practices and procedures at the lakeview post office as a result of his duties as postmaster avilla testified that he was familiar with petitioner's last name clevenger in and the lakeview post office had post office boxes and the nuevo post office had post office boxes and one highway contract route for street delivery that extended into the lakeview area and had about deliveries the bell avenue address was not located along the highway contract route according to avilla it was the policy of the nuevo and lakeview post offices to deliver mail to the residents of lakeview and nuevo based upon the resident's last name rather than street address for example mail received by either the lakeview or nuevo post offices that was addressed to a resident of the nuevo or lakeview area with only the resident's name and city on the letter or package was still delivered either to the resident's post office box or to the resident's street address if that resident was receiving mail at the street address petitioner's witness edna morrison morrison testified that she her husband and her son resided at the bell avenue address from mid-date until date morrison was unable to produce any documentary_evidence or records to corroborate the dates she claims to have resided at the bell avenue address morrison testified that during the time she claims she resided at the bell avenue address she never received any mail that was addressed to petitioner or her husband because she only received mail at her post office box petitioner's second witness melinda hayes hayes testified that she her mother and her brother resided at the bell avenue address from date until date accordingly hayes allegedly was living at the bell avenue address when the notice_of_deficiency was issued to petitioner hayes testified that during the time she claims she resided at the bell avenue address she never received any mail that was addressed to petitioner or her husband hayes claimed that her family actually received mail at the bell avenue address at the time of the hearing hayes was petitioner's daughter-in-law discussion the jurisdiction of this court is governed by statute sec_7442 a valid notice_of_deficiency and a timely filed petition are essential to our deficiency jurisdiction sec_6212 and sec_6213 rule a c 93_tc_22 91_tc_1019 under sec_6212 a notice_of_deficiency is sufficient if it is mailed to the taxpayer's last_known_address by certified or registered mail sec_6212 and b a notice_of_deficiency is valid if it is mailed to the taxpayer's last_known_address even if it is not received by the taxpayer 935_f2d_1066 9th cir affg tcmemo_1989_439 857_f2d_676 9th cir affg on other grounds 88_tc_1042 even if the notice is mailed to the wrong address it will be valid if the taxpayer receives actual notice of the deficiency and is not unduly prejudiced in timely filing his or her petition 87_f3d_273 9th cir affg tcmemo_1994_344 quoting 55_f3d_216 6th cir affg t c memo 81_tc_42 respondent's motion to dismiss is based on the ground that the petition was not timely filed this court will not dismiss the petition as untimely filed unless respondent first establishes that respondent mailed a notice_of_deficiency to petitioner and proves the date on which the notice was mailed 92_tc_729 affd without published opinion 935_f2d_1282 3d cir the record here includes a copy of the notice dated date that was sent to petitioner as well as a copy of the u s postal service form_3877 for registered insured c o d certified and express mail with an date postmark date the legend stamped at the top left-hand side of the form_3877 states statutory notices of deficiency for the year s indicated have been sent to the following taxpayers petitioner's name and the bell avenue address appear on the form_3877 in addition to the redacted names of four other taxpayers petitioner has not disputed the mailing of the deficiency_notice to the bell avenue address based on this evidence and the record as a whole we find that respondent has established that the subject notice_of_deficiency was mailed to petitioner at the bell avenue address on date see 54_tc_1535 generally a taxpayer ha sec_90 days after the mailing of a notice_of_deficiency to file a petition with this court sec_6213 monge v commissioner supra pincite however if the taxpayer is involved in bankruptcy proceedings the debtor- taxpayer is prohibited from filing a petition with this court while the bankruptcy case is pending u s c sec_362 supp ii under sec_6213 the 90-day period is suspended for the time during which the debtor-taxpayer is prohibited by reason of the bankruptcy proceedings from filing a petition and for days thereafter although the tax court's jurisdiction is limited by u s c sec_362 supp ii the commissioner is not prohibited from issuing a notice_of_deficiency during the pendency of a bankruptcy case u s c sec_362 supp ii see 105_tc_220 petitioner and her husband filed for individual bankruptcy on date months before the notice_of_deficiency was mailed petitioner and her husband were discharged from bankruptcy on date accordingly the 90-day period began to run days later sec_6212 and sec_6213 u s c sec_362 c supp ii the 90-day period expired on date sec_6213 petitioner did not file her petition in this case until date therefore given a valid notice_of_deficiency the petition must be dismissed for lack of jurisdiction as untimely sec_6213 sec_7502 rule a c see pietanza v commissioner supra pincite however if we should find that jurisdiction is lacking because respondent did not mail a valid notice_of_deficiency under sec_6212 we would dismiss the case on that ground pietanza v commissioner supra pincite petitioner argues that respondent's motion should be denied on the ground that the notice was not sent to her last_known_address neither sec_6212 nor the regulations thereunder define a taxpayer's last_known_address a taxpayer's last_known_address is the address to which in light of all surrounding facts and circumstances the commissioner reasonably believed the taxpayer wished the notice_of_deficiency to be sent the practical refinement of this rule is that generally a taxpayer's last_known_address is that used on his most recent return unless the taxpayer communicates to the commissioner clear and concise notice of a change_of address williams v commissioner supra pincite quoting 724_f2d_808 9th cir when a taxpayer changes his address the taxpayer must notify the commissioner of the change or else accept the consequences 62_tc_367 affd without published opinion 538_f2d_334 9th cir to supplant the address on the most recent return the taxpayer must clearly indicate that the former address is no longer to be used 763_f2d_89 2nd cir white v commissioner tcmemo_1990_528 petitioner's joint federal_income_tax return for filed date was the most recent return filed by petitioner when the notice_of_deficiency was issued on date petitioner bears the burden of proving that the notice_of_deficiency was not mailed to her last_known_address rule a 89_tc_806 moreover regardless of the burden_of_proof the record before us is replete with documents indicating that in date when petitioner's most recent return was filed petitioner and her husband considered the bell avenue address their residence address among the documents introduced as evidence by respondent were petitioner's bankruptcy records official employment records including her wage reports and personnel records records from the california department of motor vehicles and an abstract of judgment and notice of judgment lien filed by first interstate bank of california against petitioner and her husband on date respondent filed a notice_of_federal_tax_lien with the riverside california recorder's office against petitioner and her husband for the tax_year the lien identifies petitioner's residence as the bell avenue address respondent argues that because this lien was filed based upon petitioner's last filed income_tax return an inference can be made that respondent used petitioner's last filed return to determine petitioner's address when filing this lien we conclude on the basis of the substantial available evidence that the bell avenue address was the address listed on petitioner's tax_return and was petitioner's residence address in date when she and her husband filed their return for petitioner never sent notice to respondent specifically informing respondent that the address on her most recent return no longer should be used or that she wanted a different address to be used for tax purposes based upon all the evidence in the record we find that respondent mailed the subject notice_of_deficiency to the address which was shown as petitioner's residence on her most recent return prior to the date of the deficiency_notice and which was in fact her residence at the time of filing that return petitioner argues that respondent knew that her address had changed since her most recent return she contends that respondent knew of her address change by virtue of her bankruptcy petition and a form_3242 request for information from employer to locate individual which had been mailed by the internal_revenue_service to petitioner's employer on date on date petitioner's employer the nuview union school district completed and returned form_3242 to the internal_revenue_service in san diego california as completed the form_3242 identified petitioner's current address as the apricot address petitioner presented no evidence that she ever sent a copy of the bankruptcy petition to respondent this court repeatedly has held that notification by a third party of a taxpayer's new address is not sufficient to provide respondent with clear and concise notification of a taxpayer's change_of address see 93_tc_22 different addresses on forms and roy v commissioner tcmemo_1992_559 different address on a bankruptcy cover sheet oak center v commissioner tcmemo_1990_633 form where the form did not expressly provide that the taxpayers' address had changed grencewicz v commissioner tcmemo_1990_597 forms and various other interest statements filed by third parties white v commissioner tcmemo_1990_528 a form_w-2 reflecting a different address greenstein v commissioner tcmemo_1990_405 forms w-2 and 1099-div filed by third party payers in 724_f2d_808 9th cir the court_of_appeals indicated that third party notification would be adequate stating that where the taxpayer himself did not communicate the change_of address to the irs the taxpayer would not be estopped from arguing that a change_of address noted by the irs was incorrect id pincite the documents introduced by respondent in this case establish to our satisfaction that in date when petitioner and her husband filed their joint federal_income_tax return they were using the bell avenue address as their residence address and apparently listed that address on their return considering all the evidence available concerning petitioner's ownership of the bell avenue property and repeatedly claiming it as a residence address in contrast to her temporarily occupying quarters at her place of employment the apricot address some time in we conclude that on the date the deficiency_notice was mailed respondent reasonably believed that the bell avenue address was the address this taxpayer wished to have respondent use in sending mail to her thus petitioner's last_known_address was the bell avenue address respondent mailed the subject notice_of_deficiency to the bell avenue address that address would have been satisfactory to assure delivery to petitioner even if she had moved elsewhere in the lakeview-nuevo area respondent was not given clear and concise notification of a change_of address therefore we hold that the notice_of_deficiency with respect to petitioner's taxable years through was properly sent by respondent by certified mail to petitioner's last_known_address on date accordingly an order will be entered granting respondent's motion to dismiss for lack of jurisdiction on the ground that the petition was untimely filed


t c summary opinion united_states tax_court ina farka petitioner v commissioner of internal revenue respondent docket no 5599-13s filed date ina farka pro_se michelle r weigelt and cathy fung for respondent summary opinion dean special_trial_judge this case was heard pursuant to the provisions of sec_7463 of the internal_revenue_code in effect when the petition was filed pursuant to sec_7463 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 in effect at all relevant times and rule references are to the tax_court rules_of_practice and procedure this case arises from petitioner’s request for relief from joint_and_several_liability under sec_6015 with respect to an understatement of federal_income_tax for respondent denied petitioner relief from joint_and_several_liability under sec_6015 c and f the issue for decision is whether petitioner is entitled to relief under sec_6015 c or f for background some of the facts have been stipulated and are so found the stipulation of facts and the attached exhibits are incorporated herein by reference petitioner resided in maryland when she filed her petition petitioner and frank koye were married in albania in and later moved to the united_states mr koye filed for divorce in date and moved out of the marital home after date petitioner and mr koye’s divorce became final on date petitioner is currently employed with the department of homeland security as an analyst during petitioner worked as an employee of the department of labor dol the dollar_figure she earned at the dol was reported on her joint form_1040 u s individual_income_tax_return for petitioner’s employment with the dol terminated in date it took some time to process petitioner’s claim for unemployment_compensation but she began receiving payments in date retroactive to date petitioner received unemployment_compensation totaling dollar_figure which was not reported on her joint form_1040 for petitioner received before date a form 1099-g certain government payments reporting the unemployment_compensation she was paid petitioner deposited her checks into her own bank account on date petitioner and mr koye were sent a federal tax_refund for that included taxable interest of dollar_figure that was not reported on their joint form_1040 for the record does not clearly show into whose bank account the refund check was deposited on date the district_court of maryland for montgomery county issued an interim protective_order in favor of petitioner and her children against mr koye on the basis of a finding that there were reasonable grounds to believe that mr koye had committed an assault mr koye was ordered not to abuse threaten or contact petitioner and she was granted temporary use and possession of the marital home the interim protective_order was changed to a temporary protective_order on date on date mr koye was adjudicated not guilty of a second degree criminal assault charge after petitioner invoked marital privilege after oath geraldine casey a licensed attorney who no longer practices law but prepares tax returns under her own name prepared petitioner’s joint federal_income_tax return for ms casey prepared and filed federal_income_tax returns for petitioner and mr koye for about years her normal routine was to provide them with an organizer in which to record their information for the tax_year along with their pertinent documents for the tax_return ms casey sent separate organizers to petitioner and mr koye as they were living apart and they each provided her with the information she used to prepare the return the joint federal_income_tax return for petitioner and her husband was filed on or about date respondent issued a statutory_notice_of_deficiency to petitioners for on date determining that they had failed to include in income petitioner’s unemployment_compensation and the interest_paid by the internal_revenue_service irs on a tax_refund according to respondent neither petitioner nor mr koye filed a petition for redetermination of the deficiency and the deficiency was assessed in due course discussion in general a spouse who files a joint federal_income_tax return is jointly and severally liable for the entire tax_liability sec_6013 if certain requirements are met however an individual may be relieved of joint_and_several_liability under sec_6015 the court applies a de novo scope and standard of review in deciding whether a taxpayer is entitled to relief under sec_6015 see 705_f3d_980 9th cir aff’g tcmemo_2010_ 132_tc_203 except as otherwise provided in sec_6015 the taxpayer requesting spouse bears the burden of proving entitlement to relief rule a porter v commissioner t c pincite 119_tc_306 aff’d 101_fedappx_34 6th cir three forms of relief are available under sec_6015 in general sec_6015 provides full or apportioned relief from joint_and_several_liability for understatements of tax sec_6015 provides apportioned relief to taxpayers who are divorced or separated in respect of a deficiency and in certain circumstances sec_6015 provides equitable relief from joint_and_several_liability if relief is not available under subsection b or c this court has jurisdiction to review respondent’s denial of petitioner’s request for equitable relief under sec_6015 c and f see sec_6015 sec_6015 to be eligible for relief under sec_6015 the requesting spouse must establish inter alia that the understatement_of_tax is attributable to erroneous items of the nonrequesting spouse and in signing the return the requesting spouse did not know and had no reason to know of the understatement_of_tax sec_6015 and c the requirements of sec_6015 are stated in the conjunctive haltom v commissioner tcmemo_2005_209 a requesting spouse will not qualify for relief if he or she fails to meet any one requirement alt v commissioner t c pincite haltom v commissioner tcmemo_2005_209 respondent contends that petitioner is not eligible for relief under sec_6015 because the understatement is attributable to her unreported unemployment_compensation of dollar_figure respondent further alleges that she had knowledge or reason to know of the understatement the other item is dollar_figure of interest on a joint refund sent to petitioner and mr koye in with reference to in cases involving omitted income the requesting spouse normally will have reason to know of an understatement if she had knowledge of the transaction giving rise to the income see 595_f3d_338 6th cir aff’g tcmemo_2009_20 115_tc_183 aff’d 282_f3d_326 5th cir petitioner argues that she did not know or have reason to know of the understatement she testified that she sent to the preparer three documents as attachments to two separate emails that included the form 1099-g aside from a conversation with mr koye about whether to file a joint_return she and mr koye did not discuss the return according to petitioner petitioner testified further that she had no knowledge of the interest_income because the refund check was sent to the return preparer ms casey testified that she had trouble preparing the tax_return timely because petitioner did not return the organizer to her petitioner sent emails instead according to ms casey’s testimony she could not open all the emails petitioner sent to her the one she could open contained the two documents she reported a form_w-2 wage and tax statement from the dol and a document from something called world trading ms casey further testified that she reviewed the return line by line with petitioner and mr koye separately by telephone she added that they wanted to know whether it would be better to file jointly or separately each was asked where the refund check should be sent and she was told the same as last year ms casey testified that during their separate telephone conversations on date petitioner and mr koye gave her permission to file the return so that it could be filed that night according to ms casey she became aware of the unreported income items only when mr koye notified her of the receipt of the notice_of_deficiency petitioner had knowledge or reason to know of the unreported unemployment_compensation because she had actual knowledge of the income item petitioner did not establish that she had no reason to know of the receipt of the interest on the tax_refund even if she did not know or have reason to know of the items of unreported income the understatement_of_tax is primarily attributable to her we therefore need not consider the other requirements see alt v commissioner t c pincite where a spouse seeking relief under sec_6015 has actual knowledge of the underlying transaction that produced the omitted income innocent spouse relief is denied sec_6015 115_tc_183 aff’d 282_f3d_326 5th cir the court finds that petitioner has failed to satisfy the requirements of sec_6015 and c therefore she is not entitled to relief under sec_6015 sec_6015 under sec_6015 a divorced or separated spouse may elect to limit liability for a deficiency on a joint_return to the portion allocable to him or her a taxpayer can make a valid election only if the taxpayer is divorced or is legally_separated from his or her spouse the taxpayer makes a timely election and the secretary does not demonstrate that the taxpayer had actual knowledge at the time the taxpayer signed the return of an item giving rise to a deficiency or a specific_portion thereof sec_6015 b and c see cheshire v commissioner t c pincite stergios v commissioner tcmemo_2009_15 petitioner and mr koye were divorced at the time she submitted her claim for spousal relief and respondent does not dispute that her election for relief was timely respondent asserts however that petitioner’s request for relief under sec_6015 is invalid because at the time the joint_return was filed she had actual knowledge of the unreported items the rules pertaining to a requesting spouse’s actual knowledge are set forth in sec_1_6015-3 income_tax regs see cheshire v commissioner t c pincite the knowledge standard for purpose of sec_6015 is an actual and clear awareness of the existence of the item giving rise to the deficiency in the case of omitted income knowledge of the item includes knowledge of the receipt of the income sec_1_6015-3 income_tax regs petitioner had actual knowledge of the receipt of her unemployment_compensation the record does not reflect where the refund check that included interest was deposited respondent has not offered any other evidence to show that petitioner had actual knowledge of the receipt of the interest_income the court finds therefore that petitioner is not entitled to relief under sec_6015 as to her unemployment_compensation but is entitled to relief as to the unreported interest_income because we lack clear_and_convincing evidence to support a different allocation petitioner is allocated of the interest_income on the joint refund see sec_1_6015-3 income_tax regs as discussed below the abuse exception does not apply to the half of the interest attributable to petitioner see sec_1_6015-3 income_tax regs revproc_2013_34 2013_43_irb_397 modifying and superseding revproc_2003_61 2003_2_cb_296 sec_6015 sec_6015 provides an alternative means to relieve an individual where relief is not available under sec_6015 or c from joint liability if taking into account all the facts and circumstances it is inequitable to hold the individual liable for any unpaid tax or deficiency sec_6015 under sec_6015 the secretary may grant equitable relief to a requesting spouse on the basis of the facts and circumstances because the court has found that petitioner does not qualify for relief under sec_6015 or c with respect to her unemployment_compensation and the half of the interest on the tax_refund for which she did not receive relief under sec_6015 consideration will be given to her qualification under sec_6015 for those items we apply a de novo standard of review as well as a de novo scope of review see porter v commissioner t c pincite petitioner bears the burden of proving that she is entitled to relief see rule a porter v commissioner t c pincite alt v commissioner t c pincite the commissioner has published revenue procedures listing the factors that are normally considered in determining whether sec_6015 relief should be granted see revproc_2013_34 supra the court considers these same factors in the light of the attendant facts and circumstances but is not bound by them see 136_tc_432 sriram v commissioner tcmemo_2012_91 the revenue_procedure guidelines begin by establishing all the threshold requirements that the commissioner contends must be satisfied before an equitable relief request may be considered see revproc_2013_34 sec_4 i r b pincite those conditions are the requesting spouse filed a joint_return for the taxable_year for which relief is sought the relief is not available to the requesting spouse under sec_6015 or c the claim for relief is timely filed no assets were transferred between the spouses as part of a fraudulent scheme the nonrequesting spouse did not transfer disqualified assets to the requesting spouse the requesting spouse did not knowingly participate in the filing of a fraudulent joint_return and absent certain enumerated exceptions the tax_liability from which the requesting spouse seeks relief is attributable to an item of the nonrequesting spouse if the liability is partially attributable to the requesting spouse then relief can be considered only for the portion of the liability attributable to the nonrequesting spouse id the irs will consider granting relief regardless of whether the understatement deficiency or underpayment is attributable in full or in part to the requesting spouse if any of the following exceptions applies attribution due solely due to the operation of community_property law nominal ownership misappropriation of funds abuse and fraud committed by the nonrequesting spouse id sec_4 petitioner alleges that mr koye abused her the revenue_procedure provides that if the requesting spouse can show that she was the victim of abuse before the filing of the tax_return and that as a result of that abuse the requesting spouse was not able to challenge the treatment of any items on the return for fear of retaliation consideration will be given to granting equitable relief even though the deficiency or underpayment is attributable in whole or in part to an item of the requesting spouse id sec_4 d i r b pincite the record does contain some evidence suggesting abuse in date protective orders were issued in favor of petitioner and her children against mr koye on the basis of a finding that there were reasonable grounds to believe that mr koye had committed an assault petitioner alleges that in late date relatives came to her house to visit and when she opened the door to greet them mr koye pushed her out into her relatives and closed the door that is the incident that she said prompted her to obtain the protective orders mr koye was eventually adjudicated not guilty of a second degree criminal assault charge after petitioner refused to testify and withdrew the complaint the abuse incident that petitioner raises took place almost a year before the preparation of the return at issue here petitioner has not suggested much less proved any connection between the date incident and the absence of her unemployment_compensation from her joint income_tax return in on the basis of the testimony of petitioner and ms casey it appears to the court that somehow ms casey either did not receive the form 1099-g or could not open it and petitioner for some reason failed to catch the mistake in her communications with ms casey the court concludes that it was not abuse that caused the omission of petitioner’s item from the return on the record before us petitioner is unable to meet requirement that the liability be attributable to the nonrequesting spouse on the record the court concludes that petitioner has failed to carry her burden of establishing that it would be inequitable to hold her liable for the tax_liability and the court holds that she is not entitled to relief under sec_6015 with respect to the unreported unemployment_compensation of dollar_figure and half of the interest on the tax_refund to reflect the foregoing decision will be entered under rule


ive pevewuc seen uniform issue list may se ‘ep ra t3 legend company a amount b amount c amount d dear this is in response to your correspondence dated date as supplemented by your correspondence dated date in which you requested a waiver of the day rollover requirement contained in sec_408 of the internal_revenue_code the code the following facts and representations have been submitted under penaity of perjury in support of the ruling requested on pension sep and your individual_retirement_arrangement ira both your sep and your ira were funded through company a the amount of the distribution from the sep was amount b and the amount of the distribution from the ira was amount c vou received distributions from your simplified employee fou were also told by an investment specialist from company a on that you would be subject_to tax on the distributions unless you rolled over these ampunts into a rollover ra within days your intention was to roll over amount b and amount c investment_company into a rollover ira which would be established with a different during subsequent discussions with a company a investment specialist you were informed that you had the option of depositing the two distributions into a single ira since the sep had been inactive for a long period of time and you were not sure if you would reactivate the sep in the near future the investment specialist suggested that you temporarily deposit the two distribution checks into a money market account rather than go through a more complicated process of changing the type of retirement accounts at a later date since you thought that you had a maximum period of days to roll over the two distributions and were leaving for an extended business trip you agreed to temporarily deposit amounts b and c into a money market account l w page on market account into a rollover ira you were informed that the 60-day rollover period had expired and amounts b and c would not be accepted into the rollover ira you attempted to roll over amounts b and c from the money because you are unemployéd since approximately amount d for rent food transportation health insurance automobile insurance and loan repayments you have withdrawn based on these facts and representations you request a ruling that the service waive the 60-day rollover requirement contained in sec_408 of the code regarding amount b and amount c sec_408 of the code provides in part that the term simplified_employee_pension sep means an individual_retirement_arrangement ira which meets the requirements of paragraphs and sec_408 of the code provides that except as otherwise provided in sec_408 any amount_paid or distributed out of an ira shall be included in gross_income by the payee or distributee as the case may be in the manner provided under sec_72 of the code sec_408 of the code defines and provides the rules applicable to ira_rollovers sec_408 of the code provides that sec_408 of the code does not apply to any amount_paid or distributed out of an ira to the individual for whose benefit the ira is maintained if- i the entire amount received including money and any other_property is paid into an ra for the benefit of such individual not later than the day after the day on which the individual receives the payment or distribution or ii the entire amount received including money and any other_property is paid into an eligible retirement pian other than an ira for the benefit of such individual not later than the day after the date on which the payment or distribution is received except that the maximum amount which may be paid into such pian may not exceed the portion of the amount received which is includible in gross_income determined without regard to sec_408 sec_408 of the code provides that sec_408 does not apply to any amount described in sec_408 received by an individual from an ira if at any time during the one-year period ending on the day of such receipt such individual received any other amount described in sec_408 from an ira which was not includibie in gross_income because of the application of sec_408 sec_408 of the code provides that the secretary may waive the 60-day requirement under sec_408 of the code where failure to waive such requirement would be against equity or good conscience including casualty disaster or other events beyond the reasonable control of the individual subject_to such page requirement only distributions that occurred after date are eligible for the waiver under sec_408 of the code revproc_2003_16 2003_4_irb_359 date provides that in determining whether to grant a waiver of the 60-day rollover requirement pursuant to sec_408 i of the code the service will consider all relevant facts and circumstances including errors committed by a financial_institution inability to complete a rollover due to death disability hospitalization incarceration restrictions imposed by a foreign_country or postal error the use of the amount distributed for example in the case of payment by check whether the check was cashed and the time elapsed since the distribution occurred the information you presented demonstrates that you relied upon the advice of the company a investment specialist who provided you with erroneous information regarding the proper period of time to effect a rollover because of this incorrect information you thought that you had days instead of days to roll over amount b your distribution from your sep and amount c your distribution from your ira therefore pursuant to sec_408 of the code the service hereby waives the 60-day rollover requirement with respect to the distributions of amounts b and c less amount d you are granted a period of days from the issuance of this ruling letter to contribute amounts b and c less amount d into a rollover ira provided all other requirements of sec_408 of the code except the 60-day requirement are met with respect to such contributions amount b and amount c less amount d will be considered rollover_contributions within the meaning of sec_408 of the code no opinion is expressed as to the tax treatment of the transaction described herein under the provisions of any other section of either the code or regulations which may be applicable thereto this letter expresses no opinion as to whether the sep or the ira described herein satisfied the requirements of sec_408 of the code this letter is directed only to the taxpayer who requested it section k of the code provides that it may not be used or cited as precedent page if you wish to inquire about this ruling please contact please address all correspondence to sincerely yours he gf f nhe employee_plans technical group manager enclosures deleted copy of ruling letter notice of intention to disclose


internal_revenue_service department of the treasury number release date index number washington dc person to contact telephone number refer reply to cc corp plr-130762-02 date date legend parent purchaser purchaser partnership target sellers date a date b date c plr-130762-02 company official tax professionals dear this letter responds to a letter dated date submitted on behalf of parent requesting a second extension of time under sec_301_9100-1 through of the procedure and administration regulations to file an election parent previously received an extension of time in a letter dated date plr-110213-02 publication parent is requesting a second extension to file a sec_338 election under sec_338 with respect to the acquisition of the stock of target sometimes hereinafter referred to as the election on date a all citations in this letter to regulations under sec_338 are to regulations in effect on date a parent failed to file the election by the extended due_date date b the material information is summarized below parent is the common parent of a consolidated_group purchaser is a wholly owned subsidiary of parent purchaser is an llc wholly owned by purchaser and disregarded as an entity separate from purchaser for federal_income_tax purposes target is a foreign_corporation wholly owned by partnership a domestic_partnership sellers were the only partners of partnership on date a pursuant to a purchase agreement of the same date purchaser and purchaser acquired all of sellers’ partnership interests in partnership in exchange for cash it is represented that the acquisition of target by means of the acquisition of all of the partnership interests in partnership qualified as a qualified_stock_purchase as defined in sec_338 prior to the acquisition target did not file a united_states income_tax return was not subject_to united_states income_taxation nor was required under sec_1_6012-2 to file a united_states income_tax return target is a controlled_foreign_corporation within the meaning of sec_957 target is not a passive_foreign_investment_company for which an election under sec_1295 was in effect or foreign_investment_company or foreign_corporation the stock ownership which is described in sec_552 plr-130762-02 parent intended to file the election pursuant to sec_1_338-2t d the election was due on date b however for various reasons a valid election was not filed after date b it was discovered that the election had not been filed subsequently a request was submitted under sec_301_9100-1 for an extension of time to file the election plr- granted an extension until date c to file the election however for various reasons the extended due_date was missed and this second request was submitted the period of limitations on assessment under sec_6501 has not expired for parent’s consolidated group’s or target’s taxable_year in which the acquisition occurred the taxable_year in which the election should have been filed or any taxable_year that would have been affected by the election had it been timely filed sec_338 permits certain stock purchases to be treated as asset acquisitions if the purchasing_corporation makes or is treated as having made a sec_338 election or a sec_338 election and the acquisition is a qualified_stock_purchase under sec_301_9100-1 the commissioner has discretion to grant a reasonable extension of time to make a regulatory election or a statutory election but no more than six months except in the case of a taxpayer who is abroad under all subtitles of the internal_revenue_code except subtitles e g h and i sec_301_9100-1 through provide the standards the commissioner will use to determine whether to grant an extension of time to make a regulatory election sec_301_9100-1 sec_301_9100-2 provides automatic extensions of time for making certain elections requests for relief under sec_301_9100-3 will be granted when the taxpayer provides evidence to establish that the taxpayer acted reasonably and in good_faith and that granting relief will not prejudice the interests of the government sec_301_9100-3 in this case the time for filing the election is fixed by the regulations ie sec_1 2t d therefore the commissioner has discretionary authority under sec_301_9100-1 to grant an extension of time for parent to file the election provided parent acted reasonably and in good_faith the requirements of sec_301_9100-1 and sec_301_9100-3 are satisfied and granting relief will not prejudice the interests of the government information affidavits and representations submitted by the parent company official and tax professionals explain the circumstances that resulted in the failure to timely file a valid election the information establishes that parent reasonably relied on a qualified_tax professional who failed to make or advise parent to make the election and that the government will not be prejudiced if relief is granted see sec_301 b v based on the facts and information submitted including the representations made we conclude that parent has shown it acted reasonably and in good_faith the requirements of sec_301_9100-1 and sec_301_9100-3 are satisfied and granting relief will not prejudice the plr-130762-02 interests of the government accordingly a second extension of time is granted under sec_301_9100-1 until days from the date on this letter for parent to file the election with respect to the acquisition of the stock of target as described above within days of the date on this letter parent must file the election on form_8023 in accordance with sec_1_338-2t d and the instructions to the form a copy of this letter must be attached to form_8023 within days of the date on this letter all relevant parties must file or amend as applicable all returns and amended returns if any necessary to report the transaction as a sec_338 transaction for the taxable_year in which the transaction was consummated and for any other affected_taxable_year a copy of this letter and a copy of form_8023 must be attached to the returns the above extension of time is conditioned on the taxpayers' parent’s consolidated group’s and target’s tax_liability if any being not lower in the aggregate for all years to which the election applies than it would have been if the election had been timely made taking into account the time_value_of_money no opinion is expressed as to the taxpayers’ tax_liability for the years involved a determination thereof will be made by the applicable director’s office upon audit of the federal_income_tax returns involved further no opinion is expressed as to the federal_income_tax effect if any if it is determined that the taxpayers’ tax_liability is lower sec_301_9100-3 we express no opinion as to whether the acquisition of target’s stock qualifies as a qualified_stock_purchase under sec_338 or any other tax consequences arising from the election in addition we express no opinion as to the tax consequences of filing the election late under the provisions of any other section of the code and regulations or as to the tax treatment of any conditions existing at the time of or resulting from filing the election late that are not specifically set forth in the above ruling for purposes of granting relief under sec_301_9100-1 to file the election we relied on certain statements and representations made by the taxpayers however the director should verify all essential facts in addition notwithstanding that an extension is granted under sec_301_9100-1 to file the election penalties and interest that would otherwise be applicable if any continue to apply this letter is directed only to the taxpayer s who requested it sec_6110 provides that it may not be used or cited as precedent plr-130762-02 pursuant to the power_of_attorney on file in this office a copy of this letter is being sent to your authorized representative sincerely yours ken cohen senior technician reviewer branch office of associate chief_counsel corporate