Charles Roy Schwendeman and Cindy L. Butler - Page 8




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          6015(b) or (c), and it would be inequitable to hold the                     
          requesting spouse liable for the tax liability.  Respondent                 
          denied Butler’s claim to equitable relief, and Butler bears the             
          burden of proving that this action was an abuse of respondent’s             
          discretion.  See Washington v. Commissioner, 120 T.C. 137, 146              
          (2003); Cheshire v. Commissioner, supra at 198.  In order to                
          prevail, Butler must demonstrate that respondent exercised his              
          discretion arbitrarily, capriciously, or without sound basis in             
          fact or law when respondent denied her the equitable relief.2               
          See Jonson v. Commissioner, 118 T.C. 106, 125 (2002), affd. 353             
          F.3d 1181 (10th Cir. 2003).                                                 
               Before the Commissioner will consider a taxpayer’s request             
          for relief under section 6015(f), the taxpayer must satisfy seven           
          threshold conditions listed in Rev. Proc. 2003-61, sec. 4.01,               
          2003-2 C.B. 296, 297.  These conditions are as follows:  (1) The            
          requesting spouse filed a joint return for the taxable year for             
          which he or she seeks relief; (2) relief is not available to the            
          requesting spouse under section 6015(b) or (c); (3) the                     


               2 This Court has held that our determination of whether a              
          taxpayer is entitled to relief under sec. 6015(f) “is made in a             
          trial de novo and is not limited to matter contained in                     
          respondent’s administrative record”.  See Ewing v. Commissioner,            
          122 T.C. 32, 44 (2004), vacated 439 F.3d 1009 (9th Cir. 2006).              
          That decision was vacated for lack of jurisdiction.  We need not            
          and do not decide here whether our review of respondent’s denial            
          of relief under sec. 6015(f) is limited to the administrative               
          record because our holding under sec. 6015(f) would remain the              
          same in any event.                                                          






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