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extent the Secretary is authorized to reduce the overpayment in
making any refund or credit, there can be no determination
“under” section 6015 whether the individual is entitled to a
refund or credit.5 Because this is not a determination “under”
section 6015, it follows that section 6015(a) does not supplant
community property law in the making of any such “determination”.
This conclusion is consistent with the proposed regulations,
which had been published when petitioner applied for relief, and
the final regulations.6 The proposed and the final regulations
5 Of course, a determination that an individual qualifies
for relief from joint and several liability under sec. 6015 will
affect the amount of the refund or credit that is “attributable
to the application of this section” and thus authorized to be
made under sec. 6015(g). It is telling that in describing the
allowance of credits or refunds, sec. 6015(g) uses this very
precise language rather than repeating the sec. 6015(a) language,
“determination under this section”. Under well-established
principles of statutory construction, we presume the variation in
statutory phrasing to have been purposeful. Cf. Elec. Arts, Inc.
v. Commissioner, 118 T.C. 226, 258 (2002) (“Ordinarily, in
statutes and other legal documents, it is presumed that if the
drafter * * * varies the terminology, then the drafter intends
that the meaning also vary.”).
6 The final regulations under sec. 6015 apply to elections
or requests for relief filed on or after July 18, 2002. Sec.
1.6015-9, Income Tax Regs. Because petitioner’s request for
relief was filed before July 18, 2002, the final regulations are
inapplicable. Although proposed regulations are given no greater
weight than a position advanced by the Commissioner on brief,
proposed regulations “can be useful as guidelines where they
closely follow the legislative history of the act”, Van Wyk v.
Commissioner, 113 T.C. 440, 444 (1999), as they do here.
Moreover, as pertinent here, the proposed and the final
regulations are identical. In these circumstances, we could
scarcely repudiate the proposed regulations without also casting
doubt on the validity of the final regulations, to which we owe
(continued...)
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