Appealing Innocent Spouse Relief

BY EDWARD J. SCHNEE

TAX CASE

he Ninth Circuit Court of Appeals recently considered the effects of the changes in the innocent spouse provision contained in the IRS Restructuring Act of 1998.

In 1966 Isaac Baranowicz and Lora Baran married. On their 1979–1982 tax returns, they claimed depreciation deductions from several equipment-leasing tax shelters. The IRS issued a deficiency notice denying these deductions. Following the couple’s divorce, Lora Baran filed for innocent spouse relief under IRC sections 6015 (b) and (c), which contain part of the rules for such protection. The Tax Court granted her such relief under section 6015(c). Isaac Baranowicz appealed, but the IRS argued he lacked the standing to do so.

Result . For the IRS. To initiate an appeal, taxpayers must meet three conditions: They must allege a concrete injury, the injury must be traceable to the defendant’s actions and a favorable decision must provide redress. Prior to the 1998 Restructuring Act, the courts would have held that granting Lora innocent spouse relief could not have affected Isaac’s tax liability since he still would be liable for the entire deficiency under the joint and several liability rule.

Baranowicz argued that under the act a nonrequesting spouse could participate in the initial litigation and, therefore, would be entitled to appeal the decision.

The Ninth Circuit found that Baranowicz’s participation in the initial litigation would not have changed his liability; he would have remained fully liable for the deficiency both before and after the lawsuit. The potential for reimbursement in any state court litigation is not relevant for federal purposes. Thus, because the federal liability was unchanged, the taxpayer did not meet the third requirement for an appeal (redress).

Baranowicz also argued that the 1998 act gave a nonrequesting taxpayer a stake in the outcome. According to the court, such a stake, even if it existed, did not grant the taxpayer a new right of appeal. The act simply provided for adequate notice of, and the ability to participate in, a proceeding in the Tax Court.

Nonrequesting spouses must be aware of and use their right to participate in an innocent spouse relief request at the IRS and Tax Court level. If the nonrequesting spouse chooses not to participate or loses at the Tax Court level, he or she then cannot appeal the decision.

Isaac Baranowicz v. Commissioner, CA-9, 432 F3d 972.

Prepared by Edward J. Schnee, CPA, PhD, Hugh Culverhouse Professor of Accounting and director, MTA program, Culverhouse School of Accountancy, University of Alabama, Tuscaloosa.

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