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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
11(...continued)
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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