T.C. Memo. 2010-79



                     UNITED STATES TAX COURT



                    NENO FRANC, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15293-08.             Filed April 19, 2010.



     Neno Franc, pro se.

     Ann L. Darnold and Dessa J. Baker-Inman, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     THORNTON, Judge:   Pursuant to section 6015 petitioner seeks

relief from joint and several liability for unpaid Federal income

tax liabilities for 1998 and 2000.1


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. All dollar
                                                   (continued...)
                                - 2 -

                          FINDINGS OF FACT

     The parties have stipulated some facts, which are so found.

When he petitioned the Court, petitioner resided in Arkansas.

     During the years at issue, petitioner was known as Fadil

Franca.    He and Renee Franca (Ms. Franca), who was then his wife,

conducted a painting business under the name Justin Painting Co.

Petitioner did all the painting work, and Ms. Franca performed

other duties, such as making estimates, buying paint, and

handling finances.    On May 29, 2001, petitioner and Ms. Franca

divorced.    Pursuant to the consent judgment of divorce,

petitioner was awarded the business assets and interest in Justin

Painting Co. as his sole and separate property.

     Petitioner and Ms. Franca filed joint Federal income tax

returns for each taxable year 1988 through 2000.    Most of the

taxable income reported on their 1998 and 2000 joint returns was

from their painting business--$34,199 in 1998 and $24,220 in

2000.    The returns listed petitioner as the proprietor of this

business.    The 1998 joint return showed a tax liability of

$5,023, which was not paid in full when the return was filed.2

The 2000 joint return showed a zero tax liability, but respondent

determined that the return erroneously showed duplicative credits


     1
      (...continued)
amounts are rounded to the nearest dollar.
     2
      Renee Franca, petitioner’s ex-wife, has paid part of this
liability, but an unpaid balance remains.
                                - 3 -

of $1,711, resulting in an underpayment of the same amount.

Respondent summarily assessed the 1998 and 2000 unpaid taxes

without issuing a notice of deficiency.

     On December 4, 2007, petitioner filed Form 8857, Request for

Innocent Spouse Relief, requesting relief with respect to

taxable years 1998 and 2000.    On the Form 8857, petitioner

indicated that he and Ms. Franca had filed joint returns for 1998

and 2000 but also stated that he did not know whether he had

signed the returns or whether his signature was forged.    On May

2, 2008, respondent issued to petitioner a final determination

denying his request for relief.

                               OPINION

     Married taxpayers generally may elect to file a joint

Federal income tax return.   Sec. 6013(a).   After making the

election, each spouse is jointly and severally liable for the

entire tax due on their aggregate income.    Sec. 6013(d)(3).   An

individual who has filed a joint return may seek relief from

joint and several liability under section 6015.

Filing a Joint Return

     Petitioner appears to assert that he did not sign the

returns in question for 1998 and 2000.3   If petitioner means


     3
      A signature for Fadil Franca appears on each return.
It is true that these signatures, made in a feminine hand, differ
markedly from petitioner’s signature as it appears on other
documents in the record. But even if petitioner did not inscribe
                                                   (continued...)
                               - 4 -

thereby to assert that he did not file joint returns for those

years, his assertion would be self-defeating, since filing a

joint return is a prerequisite to his obtaining relief from joint

and several liability under section 6015.      See sec. 6015(a);

Raymond v. Commissioner, 

, 195-197 (2002).

     In any event, petitioner has stipulated that he and Ms.

Franca filed joint returns for 1998 and 2000 as well as for all

other years from 1988 through 2000.4   We treat this stipulation

as a conclusive admission.   See Rule 91(e).

Availability of Relief Under Section 6015

     Section 6015 generally offers three avenues of possible

relief under subsections (b), (c), and (f).     Relief under

subsections (b) and (c) is available only with respect to

understatements of tax.   See sec. 6015(b)(1)(B), (c)(1).      Because

petitioner’s liability is due to underpayments rather than

understatements of tax, he does not qualify for relief under

section 6015(b) or (c).   Accordingly, petitioner’s sole avenue of


     3
      (...continued)
his signature on the returns, this does not necessarily mean that
he did not file joint returns. If an income tax return is
intended by both spouses as a joint return, it is not
determinative that one spouse failed to sign it. See Olpin v.
Commissioner, 

, 1301 (10th Cir. 2001), affg. T.C.
Memo. 1999-426; Estate of Campbell v. Commissioner, 

, 12
(1971); Heim v. Commissioner, 

, 273 (1956), affd. 

, 45 (8th Cir. 1958).
     4
      Similarly, on Form 8857, Request for Innocent Spouse
Relief, petitioner indicated that he had filed joint returns for
1998 and 2000.
                                 - 5 -

relief is through section 6015(f).       See Washington v.

Commissioner, 

, 146-147 (2003).

     A taxpayer who does not qualify for relief under section

6015(b) or (c) can qualify for relief under section 6015(f) if,

taking into account all the facts and circumstances, it would be

inequitable to hold the taxpayer liable for any unpaid tax or

deficiency.   Sec. 6015(f)(1).   Rev. Proc. 2003-61, 2003-

, prescribes guidelines for determining whether an individual

qualifies for relief under section 6015(f).      It sets forth seven

threshold conditions that the requesting spouse must satisfy

before the Commissioner will consider a request for relief under

section 6015(f).   One threshold condition is that, subject to

certain specified exceptions that do not pertain to this case,

the income tax liability from which the requesting spouse seeks

relief must be attributable to the other spouse.      Rev. Proc.

2003-61, sec. 4.01(7), 2003-2 C.B. at 297.

     We lack evidence that might enable us to allocate the income

of Justin Painting Co. between petitioner, who did all the actual

painting, and Ms. Franca.   We find it noteworthy, however, that

the divorce judgment awarded the business to petitioner as his

sole and separate property.   Petitioner has not shown that the

income tax liability from which he seeks relief is attributable

to Ms. Franca.   See Golden v. Commissioner, T.C. Memo. 2007-299,

affd. 

(6th Cir. 2008).       Nor has petitioner shown
                               - 6 -

that he meets any of the specified exceptions to this threshold

condition for the IRS to grant equitable relief.5   For this

reason, if for no other, we conclude that petitioner does not

qualify for equitable relief under section 6015(f).

     Alternatively, we conclude that, apart from failing to

satisfy the just-described threshold condition, petitioner has

failed to show other facts and circumstances that would justify

granting him equitable relief, pursuant to the factors listed in

Rev. Proc. 2003-61, sec. 4.03, 2003-2 C.B. at 298-299, or

otherwise.   See Olson v. Commissioner, T.C. Memo. 2009-294.      In

his petition, petitioner asserts primarily that he is entitled to

innocent spouse relief because the 1998 and 2000 income tax

liabilities were “held” in the name of Ms. Franca, who included

the debts in her 2003 bankruptcy filing.    The record does not

suggest, however, that Ms. Franca had a legal obligation to pay

the outstanding 1998 and 2000 joint tax liabilities pursuant to a

divorce decree or agreement.   See Rev. Proc. 2003-61, sec.

4.03(2)(a)(iv), 2003-2 C.B. at 298.    Petitioner has stipulated

that Ms. Franca did not abuse him and that he was not in poor


     5
      The specified exceptions to the threshold condition relate
to: (a) Attribution of an item solely due to the operation of
community property law; (b) nominal ownership; (c)
misappropriation of funds intended for the payment of tax by the
nonrequesting spouse; and (d) abuse by the nonrequesting spouse
not amounting to duress. Rev. Proc. 2003-61, sec. 4.01(7), 2003-

, 297-298. The parties have stipulated that
petitioner’s ex-wife did not abuse him. The record does not
suggest that any of the other exceptions apply.
                                 - 7 -

mental or physical health.   It is unclear from the record whether

petitioner knew or had reason to know that Ms. Franca would not

pay the income tax liabilities in question, whether he might have

received significant benefit from the unreported income beyond

normal support, whether he would suffer economic hardship if

relief is denied, or whether he has made a good-faith effort to

comply with income tax laws in taxable years since 2001.       See

sustain respondent’s determination that petitioner is

not entitled to relief pursuant to section 6015.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.