Jeanne M. Trent - Page 10

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          accompanying the recommendation to deny relief.  Res judicata was           
          not raised in the original answer filed in this case on                     
          August 13, 2001--more than 3 years after the effective date of              
          section 6015.  For the first time, in a Motion for Leave to File            
          Amendment to Answer, filed April 9, 2002, respondent stated:                
                    Upon preparation for trial, respondent’s counsel                  
               discovered that the petitioner materially participated                 
               in a prior proceeding for the 1994 tax year before the                 
               U.S. Tax Court, whereby a Decision document was signed                 
               by petitioner on December 1, 1998, the respondent on                   
               December 16, 1998, and entered by the Court on                         
               December 17, 1998.                                                     
          McClellan was not available to testify at trial, and we do not              
          know his rationale for declining to consider petitioner’s request           
          for relief from joint liability.  We assume, however, that he was           
          aware that proposed legislation would give taxpayers an                     
          opportunity to raise that claim in a later action but, like                 
          petitioner, was unaware of the res judicata effect of closing a             
          deficiency case under the circumstances then existing.                      
               Section 1.6015-1(e), Income Tax Regs., 67 Fed. Reg. 46286              
          (daily ed. July 18, 2002), effective with respect to requests for           
          relief filed on or after July 18, 2002, provides:                           
                    (e) Res judicata and collateral estoppel.  A                      
               requesting spouse is barred from relief from joint and                 
               several liability under section 6015 by res judicata                   
               for any tax year for which a court of competent                        
               jurisdiction has rendered a final decision on the                      
               requesting spouse’s tax liability if relief under                      
               section 6015 was at issue in the prior proceeding, or                  
               if the requesting spouse meaningfully participated in                  
               that proceeding and could have raised relief under                     
               section 6015.  A requesting spouse has not meaningfully                

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