Steven M. McDaniel, Petitioner and Danielle Azcona, Intervenor, Petitioners

T .C . Memo . 2009-1 3 7

UNITED STATES TAX COUR T

STEVEN M . MCDANIEL, Petitioner, AND DANIELLE AZCONA, Int rvenor v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 24702-06 . Filed June 15, 2009 .

Paul M . Kohlhoff , for petitioner .

Danielle Azcona, pro se .

.Julie A . Jebe , for respondent .

MEMORANDUM FINDINGS OF FACT AND OPINIO N

GOLDBERG, . Special Trial Judge : Respondent assessed deficiencies in Federal income tax of $ 0,455 and $14,700 for 2002 and 2003, respectively, against Steven M . McDaniel (petitioner) and Danielle Azcona (,inter enor) based on their joint Federal income' tax returns . Petitioner applied to the Internal Revenue Service (IRS) for relief from joint and several liability, commonly called innocent spouse relief . Afte r receiving no response and waiting the requisite period petitione r filed a stand-alone petition with this Court .' After th e petition was filed and before trial respondent stipulated that petitioner is entitled to full innocent spouse relief under section 6015(c) .

The petition also included a claim for abatement of interes t I under section 6404(e) . Respondent moved to dismiss petitioner's interest abatement request on the ground that the, Court lacks jurisdii:ction because petitioner had not applied for abatement of interest and the IRS had not issued a determination denying an abatement request . Petitioner replied that he did not oppose the motion, because respondent had stipulated that he owed .no tax and therefore he owed no interest .

Because intervenor appeared at the trial and opposed the innocent spouse relief, the issues for decision are : (1) Whether under section 6015(c) petitioner is entitled to relief from joint and several liability for 2002 and 2003 ; and (2) whether w e should grant respondent's motion to dismiss for lack o f u 'A stand-alone petition in this context means that petitioner requested' relief from joint and several liability and did not also request a redetermination of the deficiencies .

3 _ jurisdiction regarding petitioner's section 6404(e) interest abatement request .

Unless otherwise indicated all section references are to the Internal Revenue Code, and all Rule refe ences are to the Ta x Court Rules of Practice and Procedure .

All amounts are rounde d to the nearest dollar .

FINDINGS OF FAC T

Some of the facts have been stipula ed and are so found .

The stipulation of facts and the attache exhibits are incorporated herein by this reference . etitioner resided in Indiana at the time he filed his petition .

After graduating from high school L~ 1990 petitioner attended vocational school and worked at several jobs . Around 1993 petitioner met intervenor, the sister of a friend, while' intervenor was a student at Indiana University (I .U .) .

Petitioner and intervenor lived together for 7 of the next 9 years . In 1994 he began working for United States Steel Corp .

(U .S . Steel) at its mill in Gary, Indiana . As of trial he continued to work for U .S . .Steel as an ironworker, specifically as a safety representative .

Intervenor graduated from I .U . with dual majors in business and computer science . In 2000 she began working for Small Business Transportation, Inc . (SBT) . I tervenor quickly moved into sales and was a full-time sales representative during the 2 L years in issue . SBTris an independent third-party logistics service provider whose principal business is buying cargo spac e in bulk from regional, national, and international transportation carriers and reselling the space to small and medium-sized businesses that ship ; .goods infrequently or in . limited quantities .

Petitioner and intervenor married on October 6, 2001, i n Indiana . The marriage quickly experienced problems and i ultimately was short' lived . Intervenor left the marital°home .in Indiana and moved with her furniture to Florida in May 2002 .

Petitioner filed for divorce, but the couple reconciled ; and intervenor moved back with him in September 2002 . The r'econci'liation did not :last-, and petitioner moved out for good i n January or February 2004 . Intervenor filed for a no-fault divorce, which petitioner did not .contest . After Indiana' s statutory 6-month waiting period had passed, the divorce became final in August or September 2004 . Petitioner and intervenor had no .children .

During the first 6 months of their marriage they tried to maintain a joint checking account, but disputes ensued ; and for the rest of the marriage they maintained separate checking and savings accounts at separate banks . They had their paycheck s deposited directly into their separate accounts . They also maintained separate credit cards and independently paid their ow n credit card bills .

5 - From an inheritance he had received about 15 or 20 years earlier from his grandmother petitioner provided either $70,000 or $100,000 to purchase the lot and to b gin construction o n their home . He also used the proceeds from a bank constructio n loan to complete the construction . Peti ioner built most of th e home himself . Intervenor contributed ab $25,000 towar d furniture . The couple finished the base ent and added a deck t o the back of the house . The record does not clarify petitioner' s and intervenor's testimonial disagreemen as to whethe r intervenor paid all the monthly mortgage payments of $1,301 o r they evenly divided the monthly payment s They ate out for many of their meal and, depending on the timing of their paydays, one or the othe would pay the check .

Similarly, they shopped and paid for gr o ceries separately .

In 2003 petitioner leased and made the payments of $400 a month on a Dodge Ram truck worth $35,000 Petitioner also financed the purchase of a custom Titan motorcycle worth $28,000 .

Intervenor helped on .the downpayment, bu t petitioner made the monthly payments . Additionally, petiti, ner financed a four-whee l ATV worth $10,000 on which intervenor helped with the monthly payments . Petitioner paid for the insu ance on all of hi s vehicles . Intervenor similarly leased, made the monthly lease payments on, and paid for the insurance on a vehicle .which she used for her work with SBT and for her wn recreation vehicle :.

For the years !n issue petitioner received Forms W-2, Wage and Tax Statement, from U .S . Steel reporting $47,277 and$5l,99 9 in wages for 2002 and 2003, respectively .

Intervenor, onithe other hand, received distinct Forms W- 2 and Forms 1099-MISC,LMiscellaneous Income, from SBT reporting wages of $25,117 and $35,526 for 2002 and 2003, respectively, and II independent contractor payments to her of $50,831 and $65,939 fo r 2,002 and 2003, respectively . SBT's purpose in issuing separate forms was to make it(cid:127) :.easier for intervenor to report her . business expenses related to her sales activity . During a subsequent IRS examination the revenue agent considered the issue o f intervenor's independent contractor versus employee status but decided not to pursue the matter because "the tax effect was no t substantial ." In 200 3.intervenor also started from her home her own transportation logistics company called Maximum Logistics .

Petitioner had no-,involvement in intervenor's businesses .

He,did attend one SBT-related business trip with her to Las Vegas . Except for an SBT-sponsored social dinner on the first evening, petitioner did not attend any of the business . meetings or company functionsI.. He met some friends and spent the days with them or gambled or relaxed by the pool while intervenor wa s .conducting business . SBT did not require petitioner to atten d the business trip, and petitioner paid for his own airplan e ticket4and meals .

Despite the separations and the mar tal difficulties, th e couple filed joint Federal . income tax returns for 2002 and 2003 .

At the suggestion of a relative of intervenor they went to Doris Tax Service in Kouts, Indiana, for help ~n preparing their returns for both years . The tax prepare worked in an office ; converted from her garage .

We take judicial notice that on November 14, 2008, the U .S .

District Court for the Northern District of Indiana in United States v . Stowers , docket No . 07-CR-0017 sentenced Doris Stowers of Doris Tax Service in Kouts, Indiana, to imprisonment for up to 24 months for one count of "assisting in the preparation of a false United States individual income to return in violation of Title 26, United States Code, Section 7206(2) ." The indictment shows that for years 2002 and 2003 (the years at issue here) Ms .

Stowers willfully advised clients to claim false deductions on their Federal income tax returns for charitable contributions, educational credits and expenses, medical expenses, miscellaneou s expenses, and job expenses .

In regard to their returns for 200 and 2003 intervenor and petitioner both attended the annual meetings with the tax preparer, but each met separately with 4he preparer and presente d his or her own forms and expense receipts while the other sat on a couch nearby reading magazines . Peti ioner spent about 10 to 15 minutes each year with the preparer hile intervenor annually spent about an hour ., For 2003 they also brought petitioner's mother, who conversed with petitioner while intervenor discussed her expenses with the preparer .

Intervenor deducted a total of $34,408 and $48,781 in business expenses on Schedules C, Profit or Loss From Business, for 2002 and 2003, respectively, pertaining to her business activities . The categories of expenses that made up these- amounts were car anddtruck expenses, meals and entertainment,- repairs and maintenance, travel and other business expenses.

Additionally, in both years their joint Federal income tax returns reflected deductions on .Schedule A, Itemized Deductions, for State and local income taxes, real estate taxes, mortgage interest, noncash and dash charitable contributions, ands' miscellaneous expenses .

The tax prepares electronically filed the couple's returns and arranged for direct deposit of the refunds into intervenor's personal bank account. The refund for 2002 was $1,064, and the refund for 2003 was $1,072 .

In, May 2005 after the couple had divorced, the-IRS selected their joint 2002 and ;'2003 Federal income tax returns for audit .

Petitioner and intervenor attended the audits separately .

The revenue agent made disallowances to three categories of deductions on the 2002 and 2003 returns . The first categ-ory was intervenor's business expenses . At the audit intevenor was able to produce only a few receipts for her 2 02 business expenses and none for 2003 . Respondent disallowed $1 ,153 or 56 percent of intervenor's business expense deductions for 2002 . Because intervenor lacked documentation for her usiness expens e deductions for 2003, the revenue agent 1 oked to 2002 t o determine an estimate . The business exp nses that the revenue agent allowed for 2002 amounted to 30 pe cent of intervenor's 2002 total business receipts . As a resu t the revenue agen t allowed the same 30 percent for-2003, resulting in a disallowance of $28,999 or 59 percent of intervenor's 2003 business expens e deductions .

The second set of disallowances was to the noncash and cash charitable contributions . With regard to the noncash charitabl e contributions intervenor had donated ite s to Goodwill .

Intervenor deducted $4,537, and $3,267 in noncash charitable contributions for 2002 and 2003 . On the basis of intervenor's substantiation respondent disallowed $603 and,$777 for 2002 and 2003, respectively .

Regarding the cash charitable contributions, for 2002 respondent allowed only $10 of the $6,585 deduction, and for 2003 respondent allowed only $50 of the $7,585 deduction . The record's only discussion of the cash contributions was th e revenue agent ' s adjustment report, whici stated that .for contributions "the amounts claimed on the return were overstate d and have been allowed as'adequately verified . " Third, the revenue agent disallowed miscellaneous itemized deductions totalingi;$4,350 for 2002 and $8,068 for 2003 . The record does not identify the expenses for which these disallowed deductions were claimed . However, none of the amounts that petitioner claimed as miscellaneous itemized deductions for union dues and specialized; work clothing was disallowed .

Intervenor conceded the examination changes that . the' revenue agent proposed and agreed to an immediate assessment of the Federal income tax deficiencies of $10,455 and $14,700 for 2002 and 2003, respectively . Respondent therefore did not issue her a notice of deficiency ..

Conversely, petitioner contested the examination changes .

After the audit petitioner filed a Form 8857, Request fo r Innocent Spouse Relief, dated November 3, 2005, seeking relief from joint and several liability for 2002 and 2003 under section' 6015(c) .

The IRS sent a notice of deficiency dated January 11 2006 , to petitioner determining the above-mentioned income tax deficiencies of $10,455 and $14,700 for 2002 and 2003 , respectively, arising from the same disallowances that th e revenue agent proposed . Petitioner did not petition the Court for a redetermination of the deficiencie ; consequently , respondent assessed them .

On December 4, 2006, after waiting 3 months and still not receiving a response from the IRS to his application for innocent spouse relief, petitioner filed a stand- lone petition with thi s Court for relief from joint and several liability under sectio n 6015(c) . As noted above petitioner also included requests in the .

' petition for abatement of interest for 2 02 and 2003 unde r section 6404(e) . Respondent notified in ervenor of petitioner' s requests for relief, and intervenor fil e d a notice o f intervention on June 15, 2007 .

The Court set a trial date for th e trial session commencing February 28, 2008, in Chicago, Illinois .

In the interim , petitioner and his attorney discussed t e request for relief with .respondent . Intervenor similarly enga g d in correspondence and telephone conversations with respondent indicating that sh e opposed relief . On January 9, 2008, ab ut 7 weeks before trial, respondent entered into a settlement ag eement with petitioner i n the form of a .brief stipulation of settled .issues conceding that "no income tax is due from petitioner a~ter application of Internal Revenue Code [section] 601 .5(c), " When the case was called from the calendar, respondent an d petitioner's attorney appeared, as did i ntervenor . However, on advice of his attorney petitioner did n t appear . The Court - 12, - began the trial rece,,iving intervenor's testimony and permittin g cross-examination .

The Court continued the trial the next day to allow ' petitioner to be heard ; but because the mother of petitioner's attorney died overnight, the attorney could not appear . ,,The Court set the case for further trial via video conference at a special session on May 28, 2008, commencing at 10 a .m . eastern time in the electronic courtroom connected to the Tax Cour t 1, building in Washington, : D .C .

When the case was called at 10 a .m . on May 28, 2008, respondent's counsel, petitioner, and his attorney appeared via the live video conference from Chicago ; however, intervenor did not appear . The Court heard petitioner's testimony and, ,sinc e intervenor did not appear, closed the record . Interveno r appeared later at the video conferencing site in . Chicago claimin g that she had erroneously thought that the trial was to begin at 10 a .m . central time . Intervenor did not move to reopen th e record .

As noted above respondent then moved to dismiss petitioner' s section'6404(e) interest abatement requests for 2002 and 2003 for lack of jurisdiction . Petitioner replied but did not oppose the motion because of the stipulation granting relief . The Court took the motion under advisement .

OPINIO N

I .

Jurisdictio n Usually our jurisdiction in an inno ent spouse case i s founded on a notice of determination dening a requestin g spouse's application for relief . Sec . 6 15(e)(1)(A)(i)(I) . I n this case, even though petitioner never received a notice o f determination we have jurisdiction under sectio n 6015(e)(1)(A)(i)(II) because petitioner filed his petition more than 6 months after applying to the IRS or section 6015 relief .

II .

Burden of Proo f The spouse requesting relief normally bears the burden of proof in section 6015 cases . Rule 142(a) ; Alt v . Commissioner , 119 .T .C . 306, 311 (2002), affd . 101 Fed . Appx .34 (6th Cir .

2004) . However, section 6015(c) specifically provides that the Secretary bears the burden of proving that a spouse electing relief had actual knowledge at the time of signing the return of any item giving rise to the deficiency in joint tax .

King v .

Commissioner , 116 T .C . 198, 204 (2001) ; sec . 1 .6015-3(c)(2), Income Tax Regs .

At both parts of the trial respondent conducted minimal cross-examination and presented no evid,nce to show tha t disallowed deductions . Petitioner disclaimed any actual knowledge of the facts that caused those deductions to b e disallowed .

Intervenor has ,',stepped forward to oppose the section 6015 relief which respondent had stipulated . In a similar sectio n it 6015(c) case where an intervenor appeared to oppose stipulated relief we weighed the evidence by using the-preponderance of the evidence standard . See Stergios v . Commissioner , T .C . Md'mo .

2009-15 .

.

..Similarly,Jjwe will inquire whether actual knowledge ha s been established-by a preponderance of the evidence .

III .

Standard of Revie w Intervenor was not a party to the stipulation . Furthermore, section 6015(d)(4) provides the nonel :ecting spouse a right to b e heard in judicial proceedings .

Corson v . Commissioner , 114 T .C .

354, 365 (2000) . Additionally, "we have always applied a' de novo scope and standard of review in determining whether relief is warranted under subsections (b) and (c) of section 6015 ." :

Porter v . Commissioner , 1321i;T .C . (2009) (slip op . at 11) . For the foregoing reasons we will review the record de novo .

;~R IV .

Overview of Statutory Relief From Joint and Several Liabilit y When a husband and wife file a joint return their liability is normally joint and several with respect to any tax they show on the return and to any tax the Commissioner finds to be~rowing .

Sec . 60 .13(d)(3) . However, section 6015 provides three avenues of relief from joint and several liability : (1) Section 6015(b) 15 - permits relief if the requesting-spouse establishes that in signing the return he "did not know, and had no reason to know" of the items that caused the understatem nt of tax ; (2) section 6015(c) allows a separated or divorced souse to request a n allocation of liability if the requesting spouse did not have, "actual knowledge" of the items giving-rise to the'understatement of tax ; and (3) section . 6015(f) allows the IRS or the Court t o confer . equitable relief depending on th e particular facts an d circumstances but only in situations whe e relief under sectio n 6015(b) and (c) is not available . See King v . Co mm issioner, 115 T .C . 118, 121 (2000) .

V . Two Prerequisites for Relief Under Section 6015(c ) Section 6015(c) is the avenue of re ief that petitioner chose and . as discussed below is the one hat best fits hi s situation . Under section 6015(c) the re questing spouse elects to be treated as if he had filed a separate return, thereby limiting his tax liability to that portion of the deficiency properly allocable to him .

Rowe v . Commissioner , .T .C . Memo . 2001-325 .

To be eligible for relief under se, tion 6015(c)(the electin g spouse must satisfy the following two pertinent conditions as of the time of the election . First, he muilt no-longer be married to, must be legally separated from, or must have lived for the entirety of the preceding 12-month period in a different household from the individual with whom he filed the joint - 1 6 return . Sec . 6015(c)(3)(A) . Second, he must have made th e election no later than 2 years after the date on which the collection activity began . Sec . 6015(c)(3)(B) . I Petitioner satisfies these two conditions . The divorce was finalized in August or September 2004 . Thus he was no longer married to intervenor on November 3, 2005, the date on which he filed Form 8857 applying for relief . Likewise, respondent had not commenced collection activity by November 3, 2005, the date when petitioner had applied for relief . Consequently, petitioner's election was timely, and he has satisfied those two pertinent conditions .

VI .

Applicable Law ii i Section 6015(c) permits an individual to elect to limit the liability arising from a joint Federal income tax deficiency to the portion of the deficiency that is properly allocable to the electing individual under section 6015(d) .

Estate of Capehart v .

Commissioner , 125 T .C . 211, 214 (2005) ; Barnes v . Commissioner , T .C . Memo . 2004-266 ; sec . 1 .6015-3(a), Income Tax Regs . However, the relief is not available to .theextent "the Secretary demonstrates that an individual making . an election under this subsection had actual knowledge, at the time such individua l signed the return, of any item giving rise to a deficiency (o r portion thereof)" . Sec . 6015(c)(3)(C) .

.I 17 - We interpret the actual knowledge requirement of section 6015(c) at issue here more narrowly than the "reason to know" standard of section 6015(b) or (f) . See Porter v . Commissioner , supra at (slip op . at 14-15) (discussing the reason to know standard)_ A Senate committee report accompanying the 199 8 enactment of section 6015 highlights the distinction,'statin g that "actual knowledge must be established by the evidence an d shall not be inferred based on indications that, the electing .

spouse had a reason to know ." See .S . Re t . 105-174, at 59 (1998) 1998-3 C .B . 537, 595 .

Our jurisprudence holds that the re uesting spouse must have more than mere "knowledge that the [improper] deduction appears on the return" .

King v . Commissioner , 116 T .C . at 205 . Instead the requesting spouse must have "actual knowledge of the factual circumstances which made the item unallowable as a deduction . " Id . at 204 ; sec . 1 .6015-3(c) (2) (i) (B) (1) Income Tax Regs . ("I n the case of an erroneous deduction or credit, knowledge of the item means knowledge of the facts that ade the item not allowable as a deduction or credit .") .

VII .

Application of .the Law to the Fac s Petitioner contends he is entitled to full relief from th e income tax deficiencies for 2002 and 2003 because all of th e disallowed deductions are allocable to ntervenor .

We agree .

18 - Intervenor hadila college education with dual majors, and she Yias a successful career in business . She received a portion o f her earnings as wages and the remainder as payments to her as a n independent contractor . This arrangement allowed her to claim a portion of her business expenses on Schedule C rather than Schedule A . Intervenor found the tax preparer . She spent a significantly greater amount of time with the preparer .

Importantly, the refunds for 2002 and 2003 were deposited .directly into intervenor's separate bank account .

Intervenor's business expenses were overstated . When asked at trial about the disallowances, intervenor acknowledged that the tax preparer had ; provided misleading advice . Intervenor also acknowledged that she had been waiting for the "shoe to fall " because she had heard that other clients of Doris Tax Service ha d also received letters from the IRS . Further, when the revenue agent proposed the adjustments, intervenor quickly acquiesced .

Intervenor's arguments miss the main point . Under section 6015(c) the question is :,whether petitioner had actual knowledge of the facts underlying the disallowed deductions . Instead intervenor contends that petitioner must have known from loa n applications, from the annual sessions with the tax preparer, and from reviewing the returns before signing them how much income intervenor earned . The!,deficiencies did not result from omitted income but from disallowed deductions .

Intervenor's other arguments are-similarly misplaced . She contends that petitioner's lifestyle benefited from her higher earnings . She emphasizes that petitioner is also smart, and sh e contends that by signing the joint retur : is petitioner knowingl y and freely accepted joint and several liability and accordingly, in the interests of justice and fairness, should live up to hi s responsibilities . These contentions are not probative of actual knowledge for purposes of section 6015( c (3) (C) .

At trial petitioner's testimony was credible, straightforward., and without guile . Pet 'tioner did not have a level of financial acumen comparable to intervenor's . He worked in blue collar jobs, and his formal educ ation ended after hig h school .

Petitioner from the outset vehement ly denied that at th e time of signing the returns he had knowledge of the facts tha t resulted in respondent's disallowance o deductions tha t intervenor had claimed . He incurred th' expense of hiring an attorney to . contest the disallowance wh reas intervenor did not hire a lawyer . Moreover, the revenue a ent did not adjus t petitioner 's work expenses and did no t ttribute any of th e disallowance of expenses to petitioner .

Likewise, respondent i n preparation of this case for trial revi :wed the evidence an d stipulated that-petitioner was entitled to full relief .

We now address in turn the three specific sets of .disallowe d deductions .

A .

Disallowed : Schedule C Business Expense s We find credible petitioner's characterization of his an d intervenor's financial arrangements . Petitioner was busy at hi s b as an ironworker while also building the house . He did no t participate in intervenor's business, did not see her .bank account statements, .did not sign her checks, and did noti'revie w her records . Petitioner and intervenor primarily financed, made II the monthly payments on, and insured their own vehicle s separately . Their marriage was rocky and short lived .

believe intervenor was not likely to have divulged the details o f her business, nor is it probable that petitioner would have ha d much interest in the specifics .

As ;.,stated in King v . Commissioner , 116 T .C . at 204, the inquiry under section 6015(c) is whether petitioner "had actual knowledge of the factual circumstances which made the item unallowable as a deduction ." No evidence establishes that petitioner had actual knowledge of the facts causing respondent to disallow intervenor's business expense deductions . As,a result petitioner is,entitled to relief from joint and several liability with respect to intervenor's disallowed business expense deductions .

21 - B .

Disallowed Deductions for Contributions 1 .

Noncash Contribution s A similar result applies with respect to the noncash charitable contributions . Respondent di allowed $603 and $777 of the $4 ;537 and $3,26 .7 total deductions that intervenor claimed for noncash charitable contributions in 002 and 2003 , respectively .

Other than his general awareness that intervenor donated items to Goodwill, we believe petitioner did not have precise information regarding the circumstances f intervenor' s deductions or the specifics of her Valuations or the adequacy of her substantiation . We find that petitioner lacked actual knowledge respecting the disallowed noncash charitable contribution deductions and is entitled to section 6015(c) relief with regard to the portion of the deficiencies attributed to him .

2 .

Cash Contribution s Respondent allowed only $10 and $50 of the $6,585 and $7,58 5 itemized deductions for cash charitable contributions for 200 2 and 2003, respectively . The revenue agdnt's adjustment repor t stated that the contributions "claimed n the return wer e overstated and have been allowed as adequately verified . " evidence establishes petitioner's actua .

knowledge with respect to these items . We believe petitioner' ; statement tha t charitable contributions were intervene :

's responsibility . He is - 2 2 entitled to innocent spouse relief with respect to the disallowe d cash charitable contribution deductions .

C .

Disallowance of Additional Miscellaneous Itemized Deduction s The .revenue agent disallowed $4,350 and $8,068 for 2002 and 2003, respectively, of the miscellaneous itemized deductions .

The revenue agent did not adjust petitioner's separat e miscellaneous itemized deductions of $1,104 and $1,144 for 2002 and 2003, respectively, pertaining to union dues and specialize d work clothing . Although intervenor asserted in passing that at least some of the disallowed deductions were for petitioner' s JF schooling, she did not corroborate her statement ; and petitioner credibly denied it . Moreover, the revenue agent's examinatio n report did not mention schooling or indicate that any of th e disallowed miscellaneous expenses were attributable t o petitioner . Similarly, respondent stipulated that petitioner wa s not responsible for any portion of the unpaid liability .

In the end the lack of any evidence establishin g petitioner's actual knowledge of the facts which made th e miscellaneous itemized deductions unallowable is decisive .

Consequently, petitioner is entitled to innocent spouse relie f it with respect to them .

VIII .

Respondent's Motion To Dismiss Petitioner's Interes t Abatement Reques t This Court has jurisdiction to revi6w a section 6404(e ) a final determination not to abate inter st .

Bourekis v .

Commissioner , 110 T .C . 20, 26 (1998) ; se also Rule 280(b) .

Because petitioner did not request an ab tement of interest from respondent and respondent did not issue determination denying an abatement request, we lack jurisdicti n to review the matter .

We note that petitioner's request for ab tement is moot because of our grant of section 6015(c) relief . Accordingly, we will grant respondent's motion to dismiss petitioner's section 6404(e) interest abatement request for lack of jurisdiction .

To reflect our disposition of the issues , An lappropriate order will b e issued granting respondent's motion, and decision will be enterec for petitioner .