Shuang-Di Sun Bennett - Page 21

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               Generally, a spouse has to submit a request for relief under           
          the equitable relief provision of section 66(c) on Form 8857,               
          Request for Innocent Spouse Relief.  See Rev. Proc. 2003-61,                
          2003-2 C.B. 296; Rev. Proc. 2000-15, 2000-1 C.B. 447.  However,             
          since respondent did not seek until trial to collect a tax based            
          upon community property principles, petitioner had no reason to             
          submit a Form 8857 or request equitable relief until trial.                 
          Since respondent did not consider equitable relief for petitioner           
          under section 66(c), we view section 66(c) as an affirmative                
          defense and may review respondent’s denial of that relief.  See             
          Rules 39, 41(a); Butler v. Commissioner, 114 T.C. 276, 287-288              
          (2000) (discussing jurisdiction under section 6015(f)).                     
               We review the Commissioner’s denial of equitable relief                
          under section 66(c) under an abuse of discretion standard.  Beck            
          v. Commissioner, T.C. Memo. 2001-198.  We previously stated that            
          our determination of petitioner’s tax liability takes place in a            
          trial de novo.  See supra p. 11.  Where the Commissioner has not            
          previously considered equitable relief, and our review of the               
          Commissioner’s determination is for an abuse of discretion in a             
          trial de novo, we have jurisdiction to determine whether                    

          created the similar equitable relief provision under sec.                   
          6015(f).  Accordingly, cases interpreting our jurisdiction under            
          sec. 6015(f) provide guidance on interpreting our jurisdiction              
          under the equitable relief provision of sec. 66(c).  See Beck v.            
          Commissioner, T.C. Memo. 2001-198.                                          

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