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Wednesday, June 19, 2013
6015 - IRS litigating position in innocent spouse cases
the TreasuryInternal Revenue ServiceOffice of Chief Counsel
NoticeCC-2013-011June 7, 2013
Litigating Cases that Involve Claims for Relief From Joint and Several
Liability Under Section 6015
provides Chief Counsel attorneys with guidance regarding the standard and scope
of review that the Tax Court applies when reviewing requests for section
6015(f) relief from joint and several liability.
This Notice also provides litigation guidance
for cases that involve claims for relief under section 6015. This Notice
obsoletes Chief Counsel Notice CC-2009-021 (June 30, 2009) and Chief Counsel
Notice CC-2004-26 (July 12, 2004).
Wilson v. Commissioner, 705 F.3d 980 (9th Cir. 2013), aff'g T.C. Memo.
2010-134, the Ninth Circuit held that “determine,” as used in section
6015(e)(1)(A), provides a de novo standard and scope of review in section
6015(f) cases petitioned to the Tax Court.
issued an action on decision acquiescing in the court's holding. AOD 2012-07,
I.R.B. 2013-25 (June 17, 2013).
Scope of Review in Section 6015(f) Cases
In all section 6015(f) cases, the scope of review
is de novo as provided in Porter v. Commissioner, 130 T.C. 115 (2008), and the
standard of review is de novo as provided in Porter v. Commissioner, 132 T.C.
203 (2009). Chief Counsel attorneys should no longer argue that the Tax Court
should review the Service's section 6015(f) determinations for abuse of discretion
or that the court should limit its review to evidence in the administrative
Although Chief Counsel attorneys are no longer
required to preserve the standard and scope of review issues for appeal, they
should continue to work with petitioners to stipulate to evidence in the
administrative record that is relevant to the court's determination regarding
section 6015 relief.
CCISO for a Determination Regarding Relief
Although the Tax Court makes the final
determination regarding a petitioner's entitlement to relief under section
6015(b), (c), or (f), it is still appropriate for the Service to have the first
opportunity to make a determination regarding relief. If the Service has not
made a determination regarding a petitioner's entitlement to section 6015
relief before the petitioner filed a petition, the trial attorney must request
a determination from the Cincinnati Centralized Innocent Spouse Operations
(CCISO) unit. 1 This can occur in two situations.
First, section 6015(e)(1) provides the Tax Court
with jurisdiction when a taxpayer files a petition six months after filing a
request for relief with the Service but before a determination is issued.
Second, section 6213(a) provides the Tax Court
with jurisdiction over innocent spouse issues before the Service makes a
determination when a taxpayer raises section 6015 relief for the first time in
a petition from a Notice of Deficiency.Chief Counsel attorneys who send a
request to CCISO using the United States Postal Service should address the
request to: IRS-CCISO Stop 840F P.O. Box 120053 Attn: Department One Manager
Covington, KY 41012If using a private delivery service, address the request to:
IRS-CCISO 201 West Rivercenter Boulevard Stop 840F Attn: Department One Manager
Covington, KY 41011Requests should be marked “EXPEDITE - TAX COURT CASE
PENDING” and include the Form 8857 2 , the Tax Court petition, and any other
relevant documents and information in the attorney's possession.
If the petitioner does not provide the Form 8857,
the trial attorney should still request CCISO to consider the innocent spouse
issue. The request should inform CCISO that it should provide the results of
its review directly to Counsel and should not issue a determination letter to
the petitioner. In newly-docketed cases brought under the six-month rule of
section 6015(e), the trial attorney should wait to request the administrative
file until after CCISO completes its determination. If documents from the file
are needed to timely answer the petition, the trial attorney should request
copies of those documents from CCISO.
The trial attorney should remain in close contact
with CCISO while a request is pending. Chief Counsel attorneys can ask CCISO
questions about submitting a request or about the status of a request by
calling (866) 897-4270 (ext. 8147).C. Litigating Section 6015 Cases After
receiving CCISO's determination, the trial attorney should share the
determination with petitioner. If CCISO determines that a petitioner is not
entitled to section 6015 relief, the petitioner may request that Appeals
consider the denial of relief. The trial attorney should refer the case to
Appeals under normal procedures if there is sufficient time before the trial
calendar. If there is not sufficient time, but the parties agree that Appeals'
review would facilitate settlement, the parties should jointly request a
The trial attorney should prepare to defend
CCISO's denial of relief at trial, but may settle or concede the case as
appropriate.In cases in which the nonrequesting spouse has not intervened or is
not a joint petitioner, the trial attorney should, except in rare
circumstances, follow the determination made by CCISO that the petitioner is
entitled to relief and settle the case in accordance with CCISO's determination.
In the rare circumstance that the trial attorney and the trial attorney's
manager believe that evidence in the administrative file, discoverable
evidence, or evidence that may be adduced at trial warrant not following
CCISO's determination, the matter must be coordinated with Branches 1 or 2 of
the Procedure and Administration Division.
If Appeals makes the determination that the
petitioner is entitled to relief, the trial attorney should follow the
determination and settle the case in accordance with that determination.If the
nonrequesting spouse is a joint petitioner or an intervenor in the case, the
Service cannot provide section 6015 relief or settle with the requesting spouse
unless the nonrequesting spouse agrees and is a party to the settlement. Corson
v. Commissioner , 114 T.C. 354 (2000).
however, the nonrequesting spouse is not a joint petitioner or an intervener,
the Service may settle the case with the requesting spouse. Thus, in cases in
which the nonrequesting spouse is a party, the trial attorney should only treat
the determination by CCISO or Appeals to grant relief as a recommendation by
that function (unless the nonrequesting spouse agrees that the petitioner is
entitled to relief).If the nonrequesting spouse does not agree that the
petitioner is entitled to relief, the trial attorney should decide whether
granting relief is appropriate. Making that decision requires the trial
attorney to consider CCISO's or Appeals' determination, the evidence in the
administrative file, discoverable evidence, statements and documents submitted
by the nonrequesting spouse, and evidence that may be adduced at trial.
Therefore, the case may require further
development before a decision is made regarding whether granting relief is
appropriate. If the trial attorney agrees that the petitioner is entitled to
relief, the trial attorney should enter into a stipulation of settled issues
with the petitioner with the understanding that the case will still need to
proceed to trial on the innocent spouse issue. If the trial attorney agrees
with the nonrequesting spouse that the petitioner is not entitled to relief,
the trial attorney should prepare to defend CCISO's denial of relief at
trial.Questions concerning this Notice should be directed to Branch 1 or 2 of
Procedure and Administration at (202) 622-4910 or (202) 622-4940,
respectively._________/s/__________Drita TonuziAssociate Chief CounselProcedure
& Administration 1 The trial attorney should not move the Tax
Court to remand these cases for a determination by the Service regarding
section 6015 relief. In Friday v. Commissioner, 124 T.C. 220 (2005), the Tax
Court held that section 6015 does not provide for remand.2 I n cases
brought under section 6213(a), if the petitioner has not submitted a Form 8857,
“Request for Innocent Spouse Relief,” the trial attorney should request that
the petitioner complete the form and submit it to the attorney.