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affirmative defense within our traditional deficiency
jurisdiction pursuant to section 6213(a). Therefore, the Court
lacks jurisdiction to review the IRS’s decision to grant innocent
spouse relief to petitioner’s former spouse.
2. Joint and Several Liability
Petitioner contends that she should not be liable for the
full amount of the deficiency. Rather, she argues, her liability
should be limited to 50 percent since it was a joint return, her
former spouse knew about the unreported items, and he received
the benefits of the erroneous joint return (i.e., she alleges
that he received half of the $4,114 refund, and had the items
been reported correctly, the refund would have been about $330).
In general, section 6013(d)(3) provides that if a joint
return is filed, the tax is computed on the individuals’
aggregate income, and liability for the resulting tax is joint
and several. See also sec. 1.6013-4(b), Income Tax Regs. A
fundamental characteristic of joint and several liability is that
the IRS, at its option, may proceed against the taxpayers
separately and may obtain a separate judgment against each. See
Dolan v. Commissioner, 44 T.C. 420 (1965). The decision to
assess or not assess tax against one of the spouses who filed a
joint return does not prevent the IRS from proceeding against the
other. See id.; see also Kroh v. Commissioner, 98 T.C. 383
(1992).
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Last modified: March 27, 2008