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David asked the IRS for relief from joint liability for the
unpaid 1999 tax but, in November 2002, the IRS denied his request
based on “all the facts and circumstances,” particularly because:
you failed to establish that it was
reasonable for you to believe the tax
liability was paid or was going to be paid
at the time you signed the amended return.
David appealed, and the IRS issued its final determination, again
denying him relief because he did not believe when he signed the
amended return that the tax would be paid.
David then petitioned our Court to overturn the
Commissioner’s determination. Such a petition is called a
nondeficiency stand-alone petition--“nondeficiency” because the
IRS accepted his amended return as filed and asserted no
deficiency against him, and “stand-alone” because his claim for
innocent-spouse relief was made under section 6015 and not as
part of a deficiency action or in response to an IRS decision to
begin collecting his tax debt through liens or levies. When this
case was first before us, our jurisdiction over such petitions
was controversial. We had first held that we did have
jurisdiction, Ewing v. Commissioner, 118 T.C. 494 (2002), but
then the Ninth Circuit reversed us in Commissioner v. Ewing, 439
F.3d 1009 (9th Cir. 2006), and the Eighth Circuit followed in
Bartman v. Commissioner, 446 F.3d 785, 787-788 (8th Cir. 2006),
affg. in part, vacating in part T.C. Memo. 2004-93. After these
two cases, we revisited the question and in Billings I followed
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