Thomas E. Dykes & Sally A. Dykes Jaske, Petitioners

T .C . Summary opinion 2010-85

UNITED STATES TAX COUR T

THOMAS E . DYKES AND SALLY A . DYKES JASKE, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 9866-09S . Filed June 29, 2010 .

Mary M . Gillum , for petitioner Thomas E . Dykes .

Sally A . Dykes Jaske, pro se .

Caroline R . Krivacka , for respondent .

RUWE, Judge : This case was heard pursuant to the provisions of section 74631 of the Internal Revenue Code in effect when the petition was filed . Pursuant to section 7463(b), the decision t o 'Unless otherwise indicated, all section references are to the Internal Revenue Code, and all Rule references are to the Tax Court Rules of Practice and Procedure .

SERVED JUN 2 9 2010

be entered is not reviewable by any other court, and this opinion shall not be treated as precedent for any other case .

Respondent determined a $852 deficiency in petitioners' 2006 Federal income tax on the basis of the omission of $6,807 o f retirement income . Petitioners now agree that the $6,807 of retirement income is subject to tax, ,and respondent agrees that petitioners . are entitled to a $40 telephone excise tax .credit .

Therefore, the only issue remaining is whether Sally A . -Dykes Jaske (petitioner) is entitled to relief from joint liabilit y under section 6015 .

Background Some of the facts have been stipulated and are so found .

The stipulation. of .facts and the attached(cid:127)exhibits,are incorporated herein by reference .

At the time the petition was filed, petitioners resided i n ,Tennessee .

Thomas E . Dykes (Mr . Dykes) received $6,807 of disabilit y pension income in 2006 from the National Electrical Benefit Fund .

Petitioner was aware that Mr . Dykes received the pension income in:2006 .. `Petitioner prepared petitioners' joint 2006 Federal .income tax return . Petitioner reflected the pension income .on the timely filed tax return but did not include it as taxabl e income .

Petitioners were divorced 'in 2007, and petitioner has since remarried . On April 24,(cid:127) 2009, respondent received from petitioner a Form 8857, Request for Innocent : Spouse Relief .

Petitioner asserts that when Mr . Dykes began to receive the disability pension, she had been advised by a certified public accountant that the paymentswere'not taxable . Petitioner also -states that she cannot afford to pay Mr . Dykes' bills . On the Form 8857 petitioner lists $2,695 of monthly income and $2,629 .70 of monthly expense s Petitioner's adjusted gross income in 2009 was reported on her 2009 Federal income tax return in the amount of $34,793, which is . $2,899 .40 of monthly incom e Discussion Section 6015,provides"three types of relief from joint liability . Subsection (b)-provides,a form of relief available to joint filers . In order to qualify under subsection (b), petitioner must not have known or had reason to know at the time the return was signed that there was an understatement .

Petitioner was aware of the pension .income paid to Mr . Dykes .

Knowledge of the omitted income is sufficient to disqualify her .

This Court-has stated that where the- .spouse claiming relief under section 6015(b) or (c) had actual knowledge of (cid:127)the .transaction giving rise°to .omitted income .,'relief(cid:127)was not available .

King v .

Commissioner , 116 T .C . 198, 203 (2001) ; Cheshire v . Commissioner , 115 T .C . 1831,192 - 193 ( 2000), affd . 282 ,F . ;3d 326 (5th-Cir .

2002)) . Therefore, petitioner had reason to know of th e understatement, and relief .<is not,. available under sectio n 6015(b ) Subsection (c) provides for relief fromlability .for i deficiency when a joint return was ; filed and the taxpayers are n o longer married-, . are legally separated, or lived, apart , .(i . e . ,, wer e not members of the ,same household) . Sec . :*6015, (c) (3 :) ,(A) (i ) taxpayer is not eligible for relief under subsection (c)- if the Commissioner demonstrates that the taxpayer had-actual .knowledge ,of, the items giving rise to the deficiency ., Sec . . 6015 (c) . (3) (C ) It'is clear that petitioner-had actual knowledge of the , omitted income . Petitioner's belief that the income was-no t subject to tax does - not affect her actual knowledge that ,the income-was received . Accordingly, petitioner .is not eligible for relief under section .6015x(c) .

in cases where relief is unavailable=under section .6015(b) :

and (c) section 6015(f) gives .the Commissioner authority ;to grant equitable relief .on .the basis'of all the facts and circumstances .

. Rev . Proc . 2003-61, - 2003-2 C .B . 296 . PThe,factor p set'forth in Rev . Proc . 2003 .61,- supra ; .. include, inter alia, > ,whether the nonrequesting spouse abused the requesting spouse,, whether the nonrequesting ; spouse has . a legal obligation to,,pay . :

the . outstanding income tax liability under a divorce decree or agreement, whether there was significant benefit to the requesting . spouse, and whether the requesting spouse would suffer economic hardship if relief were not granted .

Id . sec . 4 .03, 2003-2 C .B . at 298-299 .

There are no allegations of spousal abuse and no provision for the payment of any tax liabilities in the divorce decree .

Although there has been no . significant benefit to petitioner, both she and Mr . Dykes received the benefit of not paying tax on the pension income . On the basis of the facts herein, the only potential basis for providing equitable relief under section 6015(f) is financial hardship . At trial petitioner's testimony was short and petitioner simply stated that she could not pay the tax . Considering the tax amounts involved, and the information in the record, we find her conclusory statement unconvincing .

Petitioner has not established that she is entitled to equitable relief under section 6015(f) .

To reflect the .foregoing, Decision will be entere d under Rule 155 .