a void when dealing with nonmarried persons. The Court could apply the "general" property laws of California (i.e., laws regarding holding property as joint tenants, tenants in common, etc.) to determine the source (i.e., ownership) of the payments. As I stated supra, the parties could present evidence on and brief this point.

C. Potential for Abuse

The majority concludes that if community property laws were disregarded for purposes of section 6015(g), “married taxpayers in community property States could structure future payments so that [the economic source of] ownership is attributable to the spouse requesting relief under section 6015, while continuing a jointly financed lifestyle." Majority op. p. 58.

The first problem with this conclusion is the implication that taxpayers who remain married should be denied the benefits provided by section 6015. Congress did not make divorce a precondition to section 6015 relief. Taxpayers who remain married can be innocent spouses under section 6015(b) and (f) and can obtain refunds under section 6015(g). Notably, divorced or separated taxpayers who elect and obtain section 6015(c) relief cannot obtain refunds. Sec. 6015(g)(3).

The second problem is that the same potential abuse is available to taxpayers in common law States. Taxpayers in common law States can structure their payments so that the ownership and/or economic source of ownership is attributable to the spouse requesting (or who has obtained) relief under section 6015, while continuing a jointly financed lifestyle. If the electing spouse in a common law State pays the liability attributable to the nonelecting spouse with income/ assets traceable to the electing spouse, he or she is entitled to a refund of those amounts.

The third problem is that taxpayers in community property States can structure their future payments and continue to enjoy a jointly financed lifestyle (i.e., the majority opinion does not prevent this abuse). As respondent concedes, petitioner is entitled to a refund of the amounts paid with her separate property. Taxpayers in community property States can pay the tax liability attributable to the nonelecting

spouse with separate property of the electing spouse and then seek a refund of these amounts.

D. Complexity/Administrative Difficulty

The majority concludes that "petitioner's approach would lead to a very complex factual analysis to trace" the assets used to make the payments and would lead to "an administrative nightmare that would severely impede collection". Majority op. p. 59.

The fact that tracing may be complex is not a sufficient reason to disregard the plain language of the statute. Contrary to the majority's suggestion that this would burden respondent, my proposal, supra, is that the burden of proof would be on petitioner as to this issue (i.e., to prove the economic source of ownership of the payment).

IV. Conclusion

I believe that the majority gives too little consideration to the text of section 6015 and instead digresses into policy matters that are better left to Congress. Additionally, the majority imposes limitations and distinctions not found in the statute. Furthermore, the majority narrowly construes the term "determination".

We can presume that when Congress enacted section 6015 in 1998 it knew (1) the effects of joint and several liability, (2) the benefits available to persons who qualify for relief from joint and several liability, and (3) the effects that the majority finds objectionable. See majority op. pp. 58-61. These policy choices are for Congress, and not the Court, to make. Our “task is to interpret the statute as best we can, not to second-guess the wisdom of the congressional policy choice." Mansell v. Mansell, 490 U.S. at 592, 594.

I believe that section 6015(a) and (g) is unambiguous and that community property laws are to be disregarded in determining the amount of the section 6015(g)(1) refund. The IRS's ability to collect the nonelecting spouse's liability via section 6321 is distinct from the relief afforded pursuant to section 6015. See secs. 6015 (which is part of Chapter 61, Information and Returns, of the Code), 6321 (which is part of Chapter 64, Collection, of the Code). As in Washington v. Commissioner, 120 T.C. 137 (2003), I believe that Mrs. Ordlock's

relief is not limited merely to relief from joint and several liability-which is very little relief indeed as, per the majority, respondent can levy on her wages, her bank accounts, and her other assets, which are community property under State law, to satisfy liabilities she was "relieved" from pursuant to section 6015.

Respectfully, I dissent.

SWIFT, WELLS, COLVIN, and FOLEY, JJ., agree with this dissenting opinion.

MARVEL, J., dissenting: I agree with the majority's statement that "The crux of this dispute is the application of the last sentence of section 6015(a) and the language of section 6015(g)(1)." Majority op. p. 51. However, I disagree with the majority that the wording and structure of section 6015 and its legislative history support the majority's conclusion that a person who resides in a community property State and who qualifies for relief under section 6015 is not entitled to a refund of any part of the community property used to satisfy her spouse's Federal income tax liability. The principal reasons for my disagreement are summarized below.

Section 6015(a) Unequivocally Provides That "Any determination [under section 6015] shall be made without regard to community property laws."

As the majority correctly points out, Congress in 1998 enacted section 60151 as a means of expanding relief to innocent spouses. See H. Conf. Rept. 105-599, at 249-255 (1988), 1998–3 C.B. 747, 1003-1009; S. Rept. 105-174, at 55– 60 (1998), 1998-3 C.B. 537, 591-596; H. Rept. 105-364 (Part 1), at 60-62 (1997), 1998–3 C.B. 373, 432-434. Section 6015 replaced section 6013(e), which was often criticized as too narrowly crafted to provide broad-based relief from liability to deserving taxpayers.

The last sentence of section 6015(a) unequivocally provides that "Any determination under this section shall be made without regard to community property laws." Section 6015 does not define the term "determination", nor does it contain

1 Sec. 6015 was enacted in the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3201, 112 Stat. 734.

any words limiting the types of determinations to which the last sentence of subsection (a) refers. In particular, section 6015 contains no language limiting the term "determination" to determinations made under subsection (b), (c), or (f), although Congress could very easily have inserted such a limitation if it had intended to enact one.

Under well-recognized principles of statutory interpretation, if a statute does not define a term, that term is given its ordinary and commonly accepted meaning. See Keene v. Commissioner, 121 T.C. 8, 14 (2003); Payless Cashways, Inc. v. Commissioner, 114 T.C. 72, 77–28 (2000). The term "determination" is defined in Webster's Third New International Dictionary (1971) to mean "the settling and ending of a controversy" and, alternatively, "the resolving of a question by argument or reasoning". It is also defined in Black's Law Dictionary (7th ed. 1999) to mean “A final decision by a court or administrative agency". Under any of these definitions, a decision regarding whether a taxpayer qualifies for a refund under section 6015(g) is a determination.

The majority nevertheless concludes that a decision as to whether a taxpayer is entitled to a refund under section 6015(g) is not a determination within the meaning of section 6015(a). The majority's analysis begins with "the statutory use of the word 'determination' in the context of community property laws and relief from joint liability", majority op. p. 53, and then traces the use of the term "determination" in former section 6013(e) and in section 6015, and in the legislative history of those sections, see majority op. pp. 53-54. Former section 6013(e)(5) contained a special rule that specifically provided that "the determination of the spouse to whom items of gross income (other than gross income from property) are attributable shall be made without regard to community property laws." Section 6015(a) does not contain any language modifying or limiting the word "determination". The majority attempts to find a limitation in the structure and wording of the rest of section 6015 and focuses on the fact that the words "determine" and "determination" do not appear in section 6015(g)(1). See majority op. p. 54-55. Former section 6013(e)(5) specifically described a determination that had to be made without regard to community property law. However, the existence of a limitation in former section 6013(e)(5) is not sufficient to support the

majority's conclusion that section 6015(a) is also so limited. Although a comparable limitation to that contained in former section 6013(e)(5) was included in the House version of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685, see Internal Revenue Service Restructuring and Reform Act of 1997, H.R. 2676, 105th Cong., 1st Sess. sec. 321 (1997); H. Rept. 105-364 (Part 1), supra at 19, 1998–3 C.B. at 391, Congress did not include in the enacted version any limitation upon the types of determinations that, under section 6015(a), must be made without regard to community property laws. Clearly, Congress knew how to craft a limitation had it wanted to do so. See, e.g., former sec. 6013(e)(5). Because I can discern no limitation from either the language or structure of section 6015 or from its legislative history, I conclude that a determination whether a taxpayer is entitled to a refund under section 6015(g) is a determination within the meaning of the last sentence of section 6015(a) and must be made without regard to community property laws.

The Description of "problems and inconsistencies" in the Majority Opinion Confuses the Service's Right To Collect With the Service's Obligation To Refund.

The majority points out that the Internal Revenue Service (Service) has the right to collect an unpaid tax liability from community property even if spouses file separate returns and only one spouse is liable for unpaid taxes. Majority op. p. 58. The majority contends that, under petitioner's section 6015 argument, if married spouses filed jointly, the Government could not collect out of community assets without some tracing mechanism when one spouse received section 6015 relief. Majority op. pp. 58–59. I disagree.

The issue before us involves petitioner's claimed right to a refund of some portion of the tax payments made with community property. The issue is not whether the Service has a right to collect an unpaid Federal tax liability out of community property. Under California law, a creditor is entitled to collect an unpaid debt out of community property even if the debt is owed solely by one spouse. See Cal. Fam. Code sec. 910 (West 2004). That right has been exercised by the Service and upheld by the Federal courts. See, e.g., McIntyre