A. Section 6015(b)
Section 6015(b) authorizes the Secretary to grant relief if the taxpayer satisfies the
requirements of subparagraphs (A) through (E) and provides as follows: SEC.
6015(b). Procedures for Relief From Liability Applicable to All Joint Filers.—
(1) In general.—Under procedures prescribed by the
Secretary, if—
(A) a joint return has been made for a taxable year; (B) on such return there is an
understatement of tax attributable to erroneous items of 1 individual filing
the joint return; (C) the other
individual filing the joint return establishes that in signing the return he or
she did not know, and had no reason to know, that there was such
understatement; (D) taking into account
all of the facts and circumstances, it is inequitable to hold the other
individual liable for the deficiency in tax for such taxable year attributable
to such understatement; and (E) the
other individual elects (in such form as the Secretary may prescribe) the
benefits of this subsection not later than the date which is 2 years after the
date the Secretary has begun collection activities with respect to the
individual making the election, then the other individual shall be relieved of
liability for tax (including interest, penalties, and other amounts) for such
taxable year to the extent such liability is attributable to such
understatement.
The requirements of section 6015(b)(1) are stated in the
conjunctive. Therefore, if the requesting spouse fails to satisfy any one of
the requirements, she does not qualify for relief. Alt v. Commissioner, 119
T.C. 306, 313 (2002), aff'd, 101 Fed. Appx. 34 [93 AFTR 2d 2004-2561] (6th Cir.
2004). The requesting spouse bears the burden of proving that she satisfies
each requirement of section 6015(b)(1). See Rule 142(a).
Sari F. Deihl v. Commissioner, TC Memo 2012-176 , Code
Sec(s) 6015.
SARI F. DEIHL, Petitioner v. COMMISSIONER OF INTERNAL
REVENUE, Respondent .
Case Information:
Code Sec(s):
6015
Docket: Docket
Nos. 12937-06, 22897-08.
Date Issued:
06/21/2012
HEADNOTE
XX.
Reference(s): Code Sec. 6015
Syllabus
Official Tax Court Syllabus
Counsel
Tim Alan Tarter, for petitioner.
Anne Ward Durning, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
MARVEL, Judge: These consolidated cases arise from
petitioner's requests for section 6015 1 relief with respect to the 1996-99
Federal income tax liabilities of petitioner and her deceased husband, Joseph
Deihl. Respondent determined that petitioner was not entitled to relief under
section 6015. Petitioner timely filed petitions seeking review of respondent's
determination. After concessions 2 and in accordance with our Opinion in Deihl
v. Commissioner, 134 T.C. 156 (2010) (Deihl II), in which we held that section
6015(g)(2) barred petitioner from making an election under section 6015(b) and
from requesting equitable relief under section 6015(f) for 1996 but did not
otherwise bar her from requesting relief under section 6015(c) for 1996 or from
requesting relief under section 6015(b), (c), and (f) for 1997 and 1998, the
issues for decision are: (1) whether petitioner is entitled to relief under
section 6015(b) for 1997-99; (2) whether she is entitled to relief under
section 6015(c) for 1996-99; and (3) whether she is entitled to relief under
section 6015(f) for 1997-99. 3
FINDINGS OF FACT
Some of the facts have been stipulated. The stipulation of
facts is incorporated herein by this reference. Petitioner resided in Arizona
when she petitioned this Court.
Background
Petitioner did not graduate from high school. She first met
Joseph Deihl when she was 12 years old. In 1963 when she was 18 years old,
petitioner married Mr. Deihl; and she remained married to him until his death
on February 5, 2006.
During the period from 1963 to 1983 Mr. Deihl held various
sales positions and petitioner and Mr. Deihl moved several times to accommodate
his employment. In approximately 1982 Mr. Deihl traveled to Phoenix and
purchased a company that manufactured tear-gas-spraying flashlights. After
operating that company for about a year, Mr. Deihl and petitioner incorporated
Mayor Pharmaceutical Laboratories, Inc. (Mayor), an S corporation. Petitioner
worked for Mayor from approximately 1983 until sometime in 1992 or 1993, when
Mr. Deihl told her that there was no reason for her to continue coming down to
the company to work. Nevertheless, as more fully explained herein, petitioner
continued to be involved with Mayor and related companies after 1993.
During the course of their marriage Mr. Deihl made the
financial decisions for the family and petitioner paid the household bills.
Petitioner filed joint income tax returns with Mr. Deihl, but she never
reviewed them before signing them. Mayor and KareMor In the early 1980s
petitioner and Mr. Deihl came up with the idea for and ultimately acquired a
patent for a multivitamin spray that came to be known as VitaMist. In 1983
petitioner and Mr. Deihl incorporated Mayor to manufacture VitaMist. 4
Petitioner and Mr. Deihl jointly owned 100% of Mayor's stock and were at all
relevant times officers of Mayor.
After experimenting with various methods of distribution, in
1992 Mr. Deihl and petitioner incorporated KareMor International, Inc.
(KareMor), an S corporation, to market VitaMist products. Petitioner and Mr.
Deihl jointly owned 100% of KareMor's stock and were at all relevant times
officers of KareMor. KareMor marketed VitaMist through independent distributors
who purchased VitaMist products from KareMor and then resold them. The
distribution structure had multiple levels because KareMor encouraged
distributors to recruit additional distributors known as downline distributors.
Distributors advanced in the KareMor hierarchy as they recruited additional
downline distributors.
Although petitioner did not work at Mayor during the years
at issue, she worked for KareMor in 1996 and 1997 and earned wages of $15,000
and $44,000, respectively. According to the Form W-2, Wage and Tax Statement,
attached to petitioner's 1998 return, she also worked at Creative Personnel
Resources and earned $84,613.30 in wages. 5 She also regularly visited the
corporate offices to sign corporate documents, and she signed checks drawn on
the Mayor and KareMor accounts throughout 1996-98. During 1996-99 petitioner
used two corporate credit cards for a variety of personal and corporate
purchases.
Petitioner involved herself in Mayor and KareMor in other
ways. In a related case, we described her involvement as follows: [Petitioner
and Mr. Deihl] *** and members of their extended family played a prominent role
in interacting personally with distributors at KareMor events. In these
interactions, petitioners believed that it was critical for every aspect of
their lives, from their attire and personal grooming to their residence, to portray
an appearance of extreme affluence and success. Petitioners felt that
distributors who were impressed to the point of being overwhelmed with what
could be achieved through multilevel marketing would be encouraged to build
their own downline networks in hopes of reaping similar benefits.
In execution of this strategy, *** [Petitioner and Mr.
Deihl] hosted at their residence a number of events *** training sessions,
meetings, and entertainment functions *** Deihl v. Commissioner, T.C. Memo.
2005-287 [TC Memo 2005-287] (Deihl I). Petitioner planned many of the KareMor
events, attended all of the KareMor conventions, and hosted numerous events at
her and Mr. Deihl's Paradise Valley home. She also traveled with Mr. Deihl on
business and headed Women of KareMor, an organization for wives of
distributors.
Since Mr. Deihl's death and through the date of trial,
petitioner has operated the VitaMist business through Mayor and other business
entities. 6
Other Business Entities Petitioner and/or Mr. Deihl also
held ownership interests in other business entities, 7 including but not
limited to the following: Phoenix Foundation, a company (sometimes referred to
as a “genealogy” company) that was apparently formed to receive the commissions
from downline sales to which petitioner and Mr. Deihl were entitled under the
multilevel marketing structure used to market VitaMist products; Pharmanutra,
Inc., a company that is also part of the genealogy and that receives
commissions for the benefit of petitioner. Petitioner holds all of the officer
positions and is a director of this company, which was incorporated in Nevada
in 2010, several years after Mr. Deihl died; Spray Fun, Inc., a company
incorporated in Nevada in 2003 to sell vitamins. Petitioner holds all of the
officer positions and is a director of the company; Legacy Lodging II, an
investment entity; Windy City Properties, LLC, a real estate holding company
that held title to, among other things, the property used as the corporate
offices at 2401 South 24th St., Phoenix, Arizona. That property was eventually
sold to petitioner's sons 8 on a date and for a price that do not appear in the
record. The property at 2401 South 24th St. is still used as the VitaMist
companies' headquarters; Regency Medical Research, a company that was
apparently formed by Mr. Deihl to market products on a retail basis to doctors;
VitaMist, Ltd., a company formed to market VitaMist products that apparently
was the successor to KareMor; 9 Spoiled Brat, Ltd., a company formed by Mr.
Deihl to market a line of facial products named after petitioner; Alternative
Employment Solutions, a company that leases employees to various business
entities involved in the manufacturing and distribution of VitaMist products;
Creative Personnel Resources, Inc., a company that was the same as Alternative
Employment Solutions and of which petitioner was an officer and director; 10
Lifestyle Advantage, Ltd., another company organized by Mr. Deihl to sell
products; Liberty Group International, another company organized to sell
products; and Left Field Productions, Inc., a company organized to put on
shows. Paradise Valley Home During the years at issue petitioner and Mr. Deihl
lived in a 10,000-square-foot residence in Paradise Valley, Arizona (Paradise
Valley home). Petitioner and Mr. Deihl owned the Paradise Valley home as
community property with right of survivorship.
In the late 1980s petitioner and Mr. Diehl purchased the
Paradise Valley home for $750,000 cash and almost immediately began an
extensive remodeling project on the property, which continued for several
years. The improvements were paid for at least in part by KareMor, 11 which
claimed amortization expense deductions with respect to the improvement costs
on its 1996-98 corporate tax returns. See Deihl I. In December 2006, after Mr.
Deihl's death, petitioner, the surviving and sole owner, sold the Paradise
Valley home for approximately $4,100,000. The final disbursement report
reflects that petitioner received a disbursement of $767,017.54 and that the
Department of Internal Revenue received a disbursement of $360,888.81 from the
sale proceeds. Petitioner used a portion of the money she received from the
sale of the Paradise Valley home to purchase a home on Cactus Road in
Scottsdale, Arizona (Cactus Road home), for $1,350,000 in 2006. Petitioner made
a downpayment of approximately $270,000 and financed the balance of the
purchase price and closing costs with a mortgage of $1,080,000. 12 Petitioner
and Mr. Deihl's Standard of Living Petitioner and Mr. Deihl drove expensive
cars, took vacations and business trips to Europe, Las Vegas, and the
Caribbean, and purchased fine jewelry. They also invested in commercial
property, such as office buildings and strip malls, and held several investment
accounts. Petitioner and Mr. Deihl were members of the Gainey Ranch Golf Club
and the Arizona Club, at which they entertained people in connection with their
business. Petitioner's Requests for Section 6015 Relief Petitioner and Mr.
Deihl filed joint Federal income tax returns for 1996-99. Tax Years 1996-98
Respondent issued notices of deficiency to petitioner and Mr. Deihl for
1996-98. Petitioner and Mr. Deihl subsequently filed a petition for
redetermination of respondent's determinations.
In Deihl I we held that petitioner and Mr. Deihl were not
entitled to certain deductions for expenses claimed through and in connection
with Mayor and KareMor, 13 a reduction in gross income related to certain items
of Mayor's cost of goods sold, or a reduction in adjusted gross income for alleged
duplicate reporting. We concluded that petitioner and Mr. Deihl were also
liable for section 6662(a) accuracy-related penalties.
We entered our decision as follows:
Penalty
Year Deficiency Sec. 6662(a)
<1>
1996
$1,002,062 $200,412
1997
2,196,184 439,237
1998
629,495 125,899
<1>
All monetary amounts have been rounded to the nearest
dollar.
On or about March 6, 2007, petitioner signed a Form 8857,
Request for Innocent Spouse Relief. Petitioner requested relief under section
6015(b), (c), and (f) for 1996-98. On August 22, 2008, respondent issued a
notice of determination denying petitioner's request for relief for each of
those years. Petitioner timely filed a petition for review of respondent's
determination.
Tax Year 1999 Respondent issued a notice of deficiency to
petitioner and Mr. Deihl for 1999. Respondent subsequently assessed an income
tax deficiency for 1999, (which resulted from an examination of KareMor's return
as well as respondent's disallowance of depreciation deductions for
improvements made to the Paradise Valley home), interest and penalties
(collectively, 1999 tax liability). Because petitioner and Mr. Deihl failed to
pay the 1999 tax liability, respondent mailed them a Letter 1058, Notice of
Levy and Your Right to a Hearing, for 1999. In response, petitioner's
representative, Donald W. McPherson, submitted a Form 12153, Request for a
Collection Due Process or Equivalent Hearing. Before and during the hearing Mr.
McPherson raised spousal defenses for petitioner and requested that she receive
relief under section 6015(a) or (f).
On April 6, 2006, respondent issued to petitioner and Mr.
Deihl a Notice of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330 sustaining respondent's proposed levy. In the notice of
determination the Appeals Officer concluded that petitioner was not entitled to
relief under section 6015. Petitioner timely filed a petition contesting
respondent's determination.
Subsequently, on November 15, 2006, respondent filed a
Notice of Federal Tax Lien for 1999. Because respondent filed the lien before
petitioner's sale of the Paradise Valley home, part of the sale proceeds was
used to satisfy petitioner and Mr. Deihl's 1999 tax liability. Procedural
History We consolidated petitioner's two petitions for section 6015 relief for
1996-98 and 1999. Subsequently, we severed the issue of whether section
6015(g)(2) barred petitioner's claims for section 6015 relief for 1996-98, 14
which we decided in an
Opinion issued on February 23, 2010. See Deihl II.
In Deihl II respondent argued that section 6015(g)(2) barred
petitioner from claiming relief from joint and several liability under section
6015(b), (c), and (f) with respect to her joint Federal income tax liabilities
for 1996, 1997, and 1998. We held that (1) section 6015(g)(2) barred petitioner
from seeking relief undersection 6015(b) and (f) for 1996; (2) section
6015(g)(2) did not bar her from seeking relief under section 6015(c) for 1996;
and (3) section 6015(g)(2) did not bar her from seeking relief under section
6015(b), (c), and (f) for 1997 and 1998. Id.
OPINION
I. Evidentiary Matters Petitioner reserved an objection to
Exhibit 30-J, the trial transcript fromDeihl
I. The Deihl I transcript includes the testimony of five
witnesses: (1) petitioner; (2) Mr. Deihl; (3) Robert J. Hartmann, an attorney
who worked for Mayor and KareMor; (4) Martin D. Goltz, who worked as a
consultant for Mayor and KareMor before becoming CFO of KareMor in the
mid-1990s; and (5) Kermit Lennick, a contractor who remodeled the Paradise
Valley property. Petitioner withdrew her objection with respect to her own
testimony in theDeihl I transcript but not with respect to the rest of the transcript.
In connection with the partial trial in docket No.
22897-08,Diehl II, the parties stipulated the admissibility of the entire
transcript fromDiehl I. Neither party reserved an objection to the transcript,
which was marked and admitted as Exhibit 14-J during the partial trial. The
parties did not limit the use of the transcript to the specific issue that was
the subject of the partial trial and decided inDiehl II.
By reason of the above, respondent contends that Exhibit
30-J is already in evidence pursuant to Rule 91(e). Rule 91(e) provides:
(e) Binding Effect: A stipulation shall be treated, to the
extent of its terms, as a conclusive admission by the parties to the
stipulation, unless otherwise permitted by the Court or agreed upon by those
parties. The Court will not permit a party to a stipulation to qualify, change,
or contradict a stipulation in whole or in part, except that it may do so where
justice requires. A stipulation and the admissions therein shall be binding and
have effect only in the pending case and not for any other purpose, and cannot
be used against any of the parties thereto in any other case or proceeding.
Alternatively, respondent contends that to the extent Exhibit 30-J contains the
testimony of Mr. Deihl, Exhibit 30-J is admissible under the former testimony
exception to the hearsay rule.
Neither party relied on the contested part of the Deihl I
transcript as the sole basis for a requested finding of fact in thaSt party's
posttrial briefs, and we do not rely on the transcript to decide this case.
Consequently, it is not necessary for us to admit the remaining portion of
theDeihl I transcript. For these reasons, we shall exclude the remaining
portion of theDeihl I transcript. See Fed. R. Evid. 401(a).
II. Section 6015
Relief Generally, taxpayers who file a joint Federal income tax return are each
responsible for the accuracy of their return and are jointly and severally
liable for the entire tax liability due for that year. Sec. 6013(d)(3);Butler
v. Commissioner, 114 T.C. 276, 282 (2000). In certain circumstances, however, a
spouse may obtain relief from joint and several liability by satisfying the
requirements of section 6015. 15
Section 6015(a)(1) provides that a spouse may request relief
from joint and several liability under section 6015(b) for an understatement of
tax on a joint return. Additionally, section 6015(a)(2) provides that an
eligible spouse may request to limit her liability for any deficiency with
respect to a joint return under section 6015(c). If complete relief is not
available under subsection (b) or (c) of section 6015, a spouse may request
equitable relief under section 6015(f).
Petitioner contends that she is entitled to relief from all
of the 1997-99 liabilities under section 6015(b) or (f). Petitioner also
requested relief from the 1996 liability and the 1997-99 liabilities under
section 6015(c) in her petition, contending that no part of the 1996-99
deficiencies is attributable to her.
Section 6015(e) confers jurisdiction on this Court to review
petitioner's requests for relief from joint and
Respondent does not dispute that petitioner meets the
requirements in subparagraphs (A) and (E) for 1997-99. Respondent contends that
petitioner fails to satisfy the requirements of subparagraphs (B) through (D).
Petitioner disagrees.
With respect to subparagraph (B) of section 6015(b)(1), both
parties agree that the understatements were attributable to erroneous
deductions of Mayor and KareMor expenses and disallowed depreciation on the
Paradise Valley home. Respondent argues that 50% of the understatements are
allocable to petitioner because petitioner and Mr. Deihl jointly owned and
operated Mayor and KareMor. Petitioner argues that the understatements are
allocable solely to Mr. Deihl because she did not assist Mr. Deihl in managing
Mayor or KareMor or in making any related financial decisions.
Erroneous items are allocable to the individual whose
activities gave rise to the items. Sec. 1.6015-1(f)(1), Income Tax Regs. While
it may be a factor, joint ownership alone does not dictate whether an erroneous
item is allocated to both spouses. Buchine v. Commissioner , T.C. Memo. 1992-36
[1992 TC Memo ¶92,036], aff'd, 20 F.3d 173 [73 AFTR 2d 94-1989] (5th Cir.
1994). Generally, an allocation is made without regard to community property
laws. Sec. 1.6015-1(f)(1), Income Tax Regs. A requesting spouse “who
voluntarily agrees to enter into an investment and who actively participates in
it” cannot allocate the entire investment to the nonrequesting spouse. Juell v.
Commissioner, T.C. Memo. 2007-219 [TC Memo 2007-219]; see also Olson v.
Commissioner, T.C. Memo. 2009-294 [TC Memo 2009-294]. However, a requesting
spouse who does not actually participate in the investment or business
activity, even if she is listed as a shareholder or partner and signed
investment documents, may avoid an allocation of liability to her in certain
circumstances. See Juell v. Commissioner, T.C. Memo. 2007-219 [TC Memo
2007-219]. In Juell, we declined to allocate understatements to the requesting
spouse when the requesting spouse did not invest any funds in the partnership,
attend any partnership meetings, or have access to any partnership funds.
In contrast, we have allocated understatements resulting
from the adjustment of partnership items to a requesting spouse who agreed to
invest in the partnership, signed documents relating to the partnership, and
wrote checks to the partnership drawn on the spouses' joint bank account. See
Bartak v. Commissioner, T.C. Memo. 2004-83 [TC Memo 2004-83], aff'd, 158 Fed.
Appx. 43 [96 AFTR 2d 2005-7356] (9th Cir. 2005). We have also allocated
understatements to a requesting spouse where the spouse agreed to make the
investment in the business, jointly invested in the business, and participated
actively in the business. See Abelein v. Commissioner, T.C. Memo. 2004-274 [TC
Memo 2004-274].
Petitioner and Mr. Deihl jointly owned 100% of the stock in,
were officers of, and controlled Mayor and KareMor. Petitioner signed corporate
checks, used corporate credit cards, and deposited money from Mayor and KareMor
into her personal accounts. Petitioner actively participated in the Mayor and
KareMor businesses through her event planning and through the Women of KareMor
organization. Furthermore, petitioner and Mr. Deihl viewed themselves and their
lifestyle as a key element in KareMor's success. Petitioner cannot convincingly
argue that she did not actively participate in the business activity when she
and Mr. Deihl relied on their personal interactions to spur business growth.
Petitioner testified that she performed these tasks as
directed by Mr. Deihl and that she never made any financial decisions related
to Mayor and KareMor. 17 Given the level of petitioner's involvement with the
corporations, however, her professed lack of interest and involvement in
corporate finances is not credible, nor is it sufficient to support an
allocation of all of the understatements attributable to the disallowance of
Mayor and KareMor deductions to Mr. Deihl.
Petitioner failed to prove that the erroneous items giving
rise to the understatement of tax are attributable solely to Mr. Deihl. Because
petitioner failed to satisfy the subparagraph (B) requirement, she is not
entitled to relief under section 6015(b). We need not address whether
petitioner satisfied the require-ments of subparagraphs (C) and (D) of section
6015(b)(1). Accordingly, we sustain respondent's determination to deny
petitioner relief under section 6015(b) for 1997-99.
B. Section 6015(c)
Under section 6015(c), if the requesting spouse is no longer married to or is
legally separated from the spouse with whom she filed the joint return, 18 the
requesting spouse may seek to limit her liability for a deficiency as provided
in section 6015(d). Sec. 6015(c)(1), (3)(A)(i)(I). A requesting spouse may
request section 6015(c) relief any time after a deficiency is asserted but no
later than two years after the date on which the Secretary has begun collection
activities with respect to the requesting spouse. Sec. 6015(c)(3)(B).
In general, section 6015(d) provides that any item giving
rise to a deficiency on a joint return is allocated to the spouses as if they
had filed separate returns. Sec. 6015(d)(3)(A). The requesting spouse is liable
only for her proportionate share of the deficiency that results from such
allocation. Sec. 6015(d)(1). If an item giving rise to a deficiency provided a
tax benefit on the joint return to the nonrequesting spouse, the item is
allocated to the nonrequesting spouse. Sec. 6015(d)(3)(B); Hopkins v.
Commissioner, 121 T.C. 73, 83-86 (2003). The requesting spouse bears the burden
of establishing the amount of the deficiency allocable to her.Sec. 6015(c)(2).
Unallowable deductions attributable to a business or
investment are allocated to the spouse who owned the business or investment.
Sec. 1.6015-3(d)(2)(iv), Income Tax Regs. Generally, an erroneous deduction is
allocated in proportion to each spouse's ownership interest. Id. The
regulations provide that, "[i]n the absence of clear and convincing
evidence supporting a different allocation, an erroneous deduction item
relating to an asset that the spouses owned jointly is generally allocated 50%
to each spouse”. Id.
Both parties agree that (1) petitioner qualifies for section
6015(c) relief for 1996-99 and (2) the deficiencies resulted from erroneous
deductions attributable to Mayor and KareMor and disallowed depreciation
deductions related to the Paradise Valley home. Respondent concedes that 50% of
the deficiencies are allocable to Mr. Deihl but contends that the other 50% are
allocable to petitioner because she jointly owned and controlled Mayor and
KareMor. Petitioner contends, however, that the entire deficiency is allocable
to Mr. Deihl. She argues that joint ownership of the corporations is not
determinative of whether the disallowed deductions are jointly allocable to her
and Mr. Deihl. Because petitioner contends that she held her interest in Mayor
and KareMor purely in a nominal capacity, made no financial decisions regarding
the corporations, and never saw the corporate tax returns, she concludes that
the deficiency is not allocable to her. Petitioner relies on Rowe v.
Commissioner, T.C. Memo. 2001-325 [TC Memo 2001-325], and McKnight v.
Commissioner T.C. Memo. 2006-155 [TC Memo 2006-155], to support her , argument.
In Rowe, we declined to allocate farming activity losses to
the requesting spouse even though the requesting spouse was listed as a
proprietor of the business on her tax returns. We stated: “the evidence in the
record reflects that petitioner's involvement in the farming activity *** was
minimal and purely social in nature. Other than infrequent attendance at horse
shows to support her son, petitioner's only apparent link to the activity is
that her name is listed as a proprietor on the *** tax returns.” Similarly, in
McKnight, we declined to allocate S corporation income to the requesting
spouse. Although the requesting spouse signed the articles of incorporation for
the S corporation and was listed as a director, she did not make a capital
contribution, participate in decisionmaking, receive stock, have signatory
authority on the corporate bank account, know what title she held with the
corporation, or receive any distributions or wages from the corporation.
Petitioner failed to prove that the items giving rise to the
deficiencies are allocable solely to Mr. Deihl. Unlike the requesting spouses
inRowe and McKnight , petitioner actively participated in the business
activities of Mayor and KareMor as described supra pp. 4-6. While petitioner's
role was predominantly social, she engaged in those social activities as a
business strategy and not merely for personal enjoyment.
Because petitioner and Mr. Deihl jointly owned Mayor and
KareMor and were both active in the businesses, we conclude that 50% of the
Mayor and KareMor items giving rise to the deficiency are allocable to each
spouse. Petitioner failed to produce clear and convincing evidence supporting a
different allocation. See sec. 1.6015-3(d)(2)(iv), Income Tax Regs.
Furthermore, petitioner failed to prove that the erroneous depreciation
deductions are allocable solely to Mr. Deihl. Petitioner owned the Paradise
Valley home with Mr. Deihl, she lived in the home during the years at issue,
and she personally paid for the improvements on which the depreciation
deductions were based. She failed to produce any evidence supporting a
different allocation of the depreciation deductions. Therefore, we sustain
respondent's determination that petitioner is entitled to relief only from 50%
of the liabilities for 1996-99 under section 6015(c).
C. Section 6015(f)
Section 6015(f) provides an alternative means of relief for a requesting spouse
who does not qualify for relief under section 6015(b) or (c). Because we have
not relieved petitioner of all liability for the 1997-99 deficiencies, we now
consider whether she is entitled to any additional relief under section
6015(f).
Under section 6015(f), the Secretary may grant relief where
“it is inequitable to hold the individual liable for any unpaid tax or any
deficiency (or any portion of either)”. Sec. 6015(f)(1). Pursuant to section
6015(f), the Commissioner has prescribed guidelines in Rev. Proc. 2003-61,
2003-2 C.B. 296, 19 for determining whether the requesting spouse qualified for
relief under that section. Generally, the Commissioner has analyzed requests
for section 6015(f) relief filed on or after November 1, 2003, using the
procedures set forth in Rev. Proc. 2003-61, supra, and this Court has
considered the guidelines, but is not bound by them, in evaluating the facts
and circumstances of a case in order to decide whether equitable relief is
appropriate. See Pullins v. Commissioner, 136 T.C. 432, 438-439 (2011); Porter
v. Commissioner, 132 T.C. 203, 210 (2009).
On January 5, 2012, the IRS released Notice 2012-8, 2012-4
I.R.B. 309, 20 a proposed revenue procedure that, if finalized, would revise
the factors the IRS will use to evaluate a requesting spouse's claim for
equitable relief under section 6015(f) and would supersede Rev. Proc. 2003-61,
supra. Notice 2012-8, supra, provides that “until the revenue procedure is
finalized, the Service will apply the provisions in the proposed revenue
procedure instead of Rev. Proc. 2003-61 in evaluating claims for equitable
relief under section 6015(f).”
The parties contend that this Court should apply the
provisions of the proposed revenue procedure set forth in Notice 2012-8, supra,
in determining whether petitioner is entitled to equitable relief under section
6015(f). 21 However, in Sriram v. Commissioner T.C. Memo. 2012-91 [TC Memo
2012-91], slip op. at 9 n.7, we took the , position that we would “continue to
apply the factors in Rev. Proc. 2003-61, 2003-2 C.B. 296, in view of the fact
that the proposed revenue procedure is not final and because the comment period
under the notice only recently closed.” Additionally, because our holding in
Sriram did not turn on any single factor as revised in the proposed revenue
procedure, we called attention in the opinion to the effect, if any, of a
revised factor only to the extent we deemed it necessary for clarity. Id. We
adopt a similar approach here. We shall decide whether petitioner is entitled
to relief under section 6015(f) by considering all of the relevant facts and
circumstances, evaluating them through the prism of Rev. Proc. 2003-61,supra,
and noting where appropriate how the analysis used in Rev. Proc. 2003-61,supra,
would change if the proposed revenue procedure in Notice 2012-8, supra, had
actually been finalized. In any event, our approach to deciding whether
petitioner qualifies for relief under section 6015(f) and our conclusion remain
the same regardless of whether we apply the analysis of Rev. Proc. 2003-61,
supra, or adopt the approach proposed in Notice 2012-8, supra.
We consider all relevant facts and circumstances in deciding
whether a requesting spouse is entitled to relief under section 6015(f). Porter
v. Commissioner, 132 T.C. at 210. In making our analysis, we apply a de novo
standard of review and a de novo scope of review, see id., and we examine
whether the requirements set forth in Rev. Proc. 2003-61, supra, were
satisfied, see, e.g., Pugsley v. Commissioner, T.C. Memo. 2010-255 [TC Memo
2010-255]; O'Meara v. Commissioner, T.C. Memo. 2009-71 [TC Memo 2009-71]. Petitioner
bears the burden of proving that she is entitled to relief under section
6015(f). See Porter v. Commissioner, 132 T.C. at 210; see also Rule 142(a).
Rev. Proc. 2003-61, sec. 4.01, 2003-2 C.B. at 297-298, lists
seven threshold requirements that a requesting spouse must satisfy before the
Commissioner will consider a request for relief under section 6015(f):
(1) The requesting spouse filed a joint return for the
taxable year for which he or she seeks relief.
(2) Relief is not available to the requesting spouse under
section 6015(b) or (c).
(3) The requesting spouse applies for relief no later than
two years after the date of the Service's first collection activity after July
22, 1998, with respect to the requesting spouse. *** [ 22 ]
(4) No assets were transferred between the spouses as part
of a fraudulent scheme by the spouses.
(5) The nonrequesting spouse did not transfer disqualified
assets to the requesting spouse. ***
(6) The requesting spouse did not file or fail to file the
return with fraudulent intent.
(7) The income tax liability from which the requesting
spouse seeks relief is attributable to an item of the individual with whom the
requesting spouse filed the joint return (the “nonrequesting spouse”), unless
one of the following exceptions applies: ***
(b) Nominal ownership. If the item is titled in the name of
the requesting spouse, the item is presumptively attributable to the requesting
spouse. This presumption is rebuttable. *** ***
(d) Abuse not amounting to duress. If the requesting spouse
establishes that he or she was the victim of abuse prior to the time the return
was signed, and that, as a result of the prior abuse, the requesting spouse did
not challenge the treatment of any items on the return for fear of the
nonrequesting spouse's retaliation, the Service will consider granting
equitable relief although the deficiency or underpayment may be attributable in
part or in full to an item of the requesting spouse.
Petitioner satisfies Rev. Proc. 2003-61, sec. 4.01(1)-(6).
23 Respondent contends that petitioner does not satisfy section 4.01(7) because
the remaining liability is attributable to her items. Petitioner contends that
she satisfies section 4.01(7) because either the nominal ownership exception or
the abuse not amounting to duress exception applies.
1. Nominal Ownership
Under Rev. Proc. 2003-61, sec. 4.01(7)(b), 24 a requesting
spouse who is a named owner may rebut the presumption of ownership. See Maluda
v. Commissioner, 431 Fed. Appx. 130 [107 AFTR 2d 2011-2588] (3d Cir. 2011),
aff'g T.C. Memo. 2009-281 [TC Memo 2009-281]. Rev. Proc. 2003-61, sec.
4.01(7)(b) provides the following example:
(b) Nominal ownership. *** For example, H opens an
individual retirement account (IRA) in W's name and forges W's signature on the
IRA in 1998. Thereafter, H makes contributions to the IRA and in 2002 takes a
taxable distribution from the IRA. H and W , file a joint return for the 2002
taxable year, but do not report the taxable distribution on their joint return.
The Service later proposes a deficiency relating to the taxable IRA
distribution and assesses the deficiency against H and W. W requests relief
from joint and several liability under section 6015. W establishes that W did
not contribute to the IRA, sign paperwork relating to the IRA, or otherwise act
as if W were the owner of the IRA. W thereby rebutted the presumption that the
IRA is attributable to W. Furthermore, if the requesting spouse acts as an
owner of the investment, the requesting spouse cannot avoid attribution. See
Bell v. Commissioner, T.C. Memo. 2011-152 [TC Memo 2011-152].
Petitioner and Mr. Deihl jointly owned Mayor and Karemor;
50% of Mayor and of KareMor is presumptively attributable to petitioner.
Petitioner has not produced evidence sufficient to rebut this presumption. In
the example in Rev. Proc. 2003-61, sec. 4.01(7)(b), the requesting spouse had
no knowledge of the investment and her nominal ownership resulted from the
nonrequesting spouse's forgery. Unlike the spouse in the example, petitioner
knew about Mayor and KareMor and knew that she owned 50% of both corporations.
Petitioner acted as an owner of the corporations by signing corporate documents
and checks, using corporate credit cards, drawing a salary from KareMor, and
actively participating in business activities. We conclude that the nominal
ownership exception does not apply.
2. Abuse Not Amounting to Duress
Under Rev. Proc. 2003-61, sec. 4.01(7)(d), 25 if the
requesting spouse proves that she was a victim of abuse, section 6015(f) relief
may be granted even though the liability is attributable to items of the
requesting spouse. For purposes of innocent spouse relief, abuse includes
verifiable physical harm as well as severe psychological mistreatment. See
Nihiser v. Commissioner, T.C. Memo. 2008-135 [TC Memo 2008-135]. If the
requesting spouse did not question or disobey the nonrequesting spouse for fear
of such abuse, the abuse exception applies. Thomassen v. Commissioner, T.C.
Memo. 2011-88 [TC Memo 2011-88]; Stephenson v. Commissioner, T.C. Memo. 2011-16
[TC Memo 2011-16].
This Court requires substantiation, or at a minimum,
specificity, with regard to allegations of abuse. See Nihiser v. Commissioner,
T.C. Memo. 2008-135 [TC Memo 2008-135]. A generalized claim of abuse is
insufficient. See Thomassen v. Commissioner, T.C. Memo. 2011-88 [TC Memo
2011-88]; Knorr v. Commissioner, T.C. Memo. 2004-212 [TC Memo 2004-212]. To
carry this burden, it is helpful for the requesting spouse to provide
corroborating evidence or substantiation of the alleged abuse. See Thomassen v.
Commissioner, T.C. Memo. 2011-88 [TC Memo 2011-88].
Petitioner testified that Mr. Deihl physically and mentally
abused her throughout their marriage. She further testified that she never
questioned Mr. Deihl's decisions for fear of retaliation. Petitioner testified
that she did not report the physical abuse to the police or other law
enforcement authorities. Petitioner's testimony was not specific as to the
timeframe of the alleged abuse, and she did not testify as to any specific
abuse that occurred during the relevant timeframe. Petitioner did not testify
that Mr. Deihl's physical or verbal abuse affected her decision to file or sign
a joint return. When questioned about signing the joint returns, petitioner did
not mention Mr. Deihl's physical or verbal abuse. Petitioner simply testified
that she signed the joint returns when Mr. Deihl presented them to her.
Petitioner's son, William M. Deihl, testified that he heard
Mr. Deihl verbally abusing her and saw signs of physical abuse, such as
bruises. William M. Deihl testified that he last observed signs of physical
abuse in 1990. When questioned about Mr. Deihl's verbal abuse, William M. Deihl
testified that Mr. Deihl constantly yelled at petitioner. No one else testified
regarding any abuse of petitioner by Mr. Deihl.
Abuse is a genuine reason to grant relief from joint and
several liability, and we are sensitive to the legal and emotional issues
related thereto. However, we cannot conclude on this record that petitioner did
not question the treatment of items reported on the joint returns for fear of
Mr. Deihl's retaliation. We did not find petitioner's testimony credible or
convincing. Petitioner provided no substantiation of the alleged abuse, such as
a police incident report or a medical report. As corroborating evidence,
petitioner introduced only the testimony of William M. Deihl, 26 which we do
not find credible. In the absence of corroborating evidence, we are not
required to accept petitioner's self-serving testimony. See Shea v.
Commissioner, 112 T.C. 183, 189 (1999). Petitioner has failed to meet her
burden of proving that she was a victim of abuse.
Petitioner has not satisfied the seventh threshold condition
of Rev. Proc. 2003-61, supra. Consequently, we conclude that petitioner is not
entitled to section 6015(f) relief from the parts of the 1997-99 tax
liabilities attributable to her.
We have considered the parties' remaining arguments, and to
the extent not discussed above, conclude those arguments are irrelevant, moot,
or without merit.
To reflect the foregoing,
Decisions will be entered under Rule 155.
1
All section
references are to the Internal Revenue Code in effect for the relevant years,
and all Rule references are to the Tax Court Rules of Practice and Procedure.
2
Respondent concedes
that petitioner is entitled to partial relief for 1996-99 under sec. 6015(c) in
that 50% of the 1996-99 tax liabilities are allocable to Mr. Deihl and she is
not liable for the amounts so allocated.
3
For 1999, unlike the
other years at issue, although petitioner sought relief under sec. 6015(c) in
her petition, she argued for relief at trial and on brief only under sec.
6015(b) and (f) and she asserted a corresponding claim for refund of the amount
paid and applied to the 1999 liability. Although we hold that petitioner is not
entitled to sec. 6015(b) or (f) relief from the 1999 liability, respondent
concedes that she is entitled to relief under sec. 6015(c) with respect to
1999, and we agree. However, a taxpayer who qualifies for relief from a tax
liability under sec. 6015(c) is not entitled to claim a refund for that part of
the liability that has already been paid. See sec. 6015(g)(3).
4
The VitaMist Web
site refers to petitioner as a “co-founder” of the VitaMist enterprise.
Co-founder Letter, http://www.vitamist.com/Articles.asp? ID=405 (last visited
June 19, 2012).
5
No Forms W-2 are attached
to the 1999 joint return that is in the record.
6
Before the date of
trial the VitaMist Web site contained a marketing statement petitioner signed
as “Co-Founder & CEO, Mayor Pharmaceutical Labs”.
7
Petitioner testified
that “Right now the companies are insolvent.” We do not find this testimony to
be credible. Petitioner offered no documentation such as financial statements,
tax returns, account statements, corporate books and records, or appraisals to
substantiate her testimony. In addition, petitioner acknowledged that some part
of the family business is still operating and, as of the trial date, had 16
employees. Her son, William Deihl, continues to work for the family business,
and petitioner is the chief executive officer, according to the VitaMist Web
site.
8
One of petitioner's
sons also may have received the proceeds from her sale of residential property
in 2006. Petitioner testified that the property in question, which was titled
in her name, was her son's property and that she could not remember who
received the sale proceeds. Petitioner acknowledged that the sale price may
have been $1,255,000 and testified that she could not remember whether she
reported the sale on her 2006 return.
9
The record does not
explain how, when, or by whom VitaMist, Ltd., was formed, nor does it reveal
whether VitaMist, Ltd., purchased assets from KareMor for consideration. The
record also does not indicate who owns VitaMist, Ltd. Absent proof to the
contrary, it is reasonable to infer from the limited record that petitioner
holds some ownership interest in VitaMist, Ltd.
10
The corporation was
dissolved on September 16, 2005, for failure to file its 2005 annual report
with the Arizona Corporation Commission.
11
Respondent alleged
that KareMor and Mayor paid for over $2 million of improvements to the Paradise
Valley home during 1996 and 1997 that were reported as expenses on the
corporation's corporate tax returns for those years.
12
Petitioner testified
at trial that the value of her Cactus Road home had declined substantially
since she purchased it, and she estimated that as of the trial date the
property was worth substantially less than the mortgage balance. Petitioner
testified that she has ceased making mortgage payments and the property was in
foreclosure as of the trial date.
13
We held that
petitioner and Mr. Deihl were not entitled to the following claimed deductions:
(1) capitalized residence improvement deductions related to the Paradise Valley
home; (2) maintenance and landscaping deductions related to residential
property and unsubstantiated maintenance and landscaping deductions; (3)
security costs related to the Paradise Valley home and other unsubstantiated
security costs; (4) dues for membership in various social clubs and expenses
incurred at those clubs; (5) unsubstantiated entertainment expenses; (6)
unsubstantiated business gift expenses; (7) clothing costs; (8) equipment and
furnishings expenses; (9) unsubstantiated travel expenses; (10) charitable
contributions; and (11) unsubstantiated promotional and marketing expenses. See
Deihl v. Commissioner, T.C. Memo. 2005-287 [TC Memo 2005-287].
14
Sec. 6015(g)(2)
provides that, in the case of any request for relief under sec. 6015(b), (c), or
(f), “if a decision of a court in any prior proceeding for the same taxable
year has become final, such decision shall be conclusive except with respect to
the qualification of the individual for relief which was not an issue in such
proceeding.” However, the exception does not apply if the individual
participated meaningfully in the prior proceeding. Sec. 6015(g)(2).
15
Sec. 6015 applies to
tax liabilities arising after July 22, 1998, and to tax liabilities arising on
or before July 22, 1998, that remain unpaid as of such date. See Internal
Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, sec.
3201(g), 112 Stat. at 740.
16
The term “Secretary”
means “the Secretary of the Treasury or his delegate”, sec. 7701(a)(11)(B), and
the term “or his delegate” means “any officer, employee, or agency of the
Treasury Department duly authorized by the Secretary of the Treasury directly,
or indirectly by one or more redelegations of authority, to perform the
function mentioned or described in the context”, sec. 7701(a)(12)(A)(i).
17
Petitioner testified
that she personally paid the contractors who performed the renovations on the
Paradise Valley home with either personal funds or with corporate funds.
Although petitioner testified that Mr. Deihl directed her to pay the
contractors, she personally paid for the renovations and used corporate funds
to do so. Petitioner introduced no other evidence to support her argument that
the Paradise Valley depreciation deductions are allocable solely to Mr. Deihl.
18
An electing spouse
is no longer married if she is widowed. See Rosenthal v. Commissioner, T.C.
Memo. 2004-89.
19
Rev. Proc. 2003-61,
2003-2 C.B. 296, supersedes Rev. Proc. 2000-15, 2000-1 C.B. 447, and is
effective for requests for sec. 6015(f) relief filed on or after November 1,
2003. Rev. Proc. 2003-61, secs. 6 and 7, 2003-2 C.B. at 299.
20
Notice 2012-8,
2012-4 I.R.B. 309, updates the guidelines for determining whether a requesting
spouse is entitled to relief from joint and several liability undersecs. 66(c)
and 6015(f). The Commissioner released Notice 2012-8, supra, to expand “how the
IRS will take into account abuse and financial control by the nonrequesting
spouse in determining whether equitable relief is warranted.” Id. In
particular, Notice 2012-8, supra, provides that abuse or lack of financial
control may mitigate factors that otherwise weigh against granting relief from
joint and several liability. See id.
21
On January 30, 2012,
we held a conference call with the parties during which counsel for the parties
requested the opportunity to state their positions with respect to the proper
interpretation and application of Notice 2012-8, supra, to the facts of these
cases. By order dated February 15, 2012, we ordered the parties to file a
status report informing the Court of their positions with respect to the proper
interpretation and application of Notice 2012-8, supra, in these cases. The
parties contend that Notice 2012-8, supra, applies to these cases.
22
Notice 2012-8, sec.
4.01(3)(a), 2012-4 I.R.B. at 312, provides that “[i]f the requesting spouse is
applying for relief from a liability or a portion of a liability that remains
unpaid, the request for relief must be made before the expiration of the period
of limitation on collection of the income tax liability, as provided in section
6502. Generally, that period expires 10 years after the assessment of tax.”
Respondent does not contend that petitioner failed to satisfy the threshold
requirement of Rev. Proc. 2003-61, sec. 4.01(3), 2003-2 C.B. at 297.
23
In his brief
respondent contends that petitioner does not satisfy Rev. Proc. 2003-61, sec.
4.01(2). We reject this contention. As described supra pp. 19-27, petitioner
does not qualify for relief under sec. 6015(b) and qualifies for only partial
relief under sec. 6015(c). Because we have not relieved petitioner of all
liability for the 1997-99 deficiencies, she satisfies Rev. Proc. 2003-61, sec.
4.01(2). See, e.g., Phemister v. Commissioner T.C. Memo. 2009-201 [TC Memo
2009-201]. Furthermore, in his status report filed March 16, 2012, respondent
concedes that petitioner meets all of the threshold conditions except sec.
4.01(7).
24
Notice 2012-8,
supra, proposes no significant changes to the nominal ownership exception. See
Notice 2012-8, secs. 3, 4.01(7)(b), 2012-4 I.R.B. at 311-312.
25
Notice 2012-8,
supra, proposes no significant changes to the abuse not amounting to duress
exception to the threshold requirement of Rev. Proc. 2003-61, sec. 4.01(7). See
Notice 2012-8, secs. 3, 4.01(7)(d), 2012-4 I.R.B. at 311-312.
26
Petitioner's son may
have a personal interest in the result of this litigation. He may have received
property from petitioner after Mr. Deihl's death for no consideration. In
addition, he is employed by the successor in interest to KareMor, and the
record does not disclose whether he has an ownership interest in the continuing
companies or how he might have obtained that interest. In the absence of
persuasive corroborating evidence, we are not required to accept the
self-serving testimony of interested parties. See Bose Corp. v. Consumers Union
of U.S., Inc., 466 U.S. 485, 512 (1984); Tokarski v. Commissioner, 87 T.C. 74,
77 (1986).
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