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Pursuant to § 6015(c)(3)(A)(i)(I), Mrs. Vetrano is 'legally separated from' Mr. Vetrano. Attached as exhibit 'B' is a copy of the divorce complaint which was filed against her husband in the Camden County Superior Court on August 7, 1998.

The complaint for divorce attached as exhibit B to petitioners' brief purports to have been filed in the State court 12 days before the date on which petitioners' posttrial brief was filed in this Court. There is no evidence that Mrs. Vetrano was divorced from Mr. Vetrano or became legally separated from him during that 12-day period. Furthermore, petitioners do not allege that Mrs. Vetrano was not a member of the same household as Mr. Vetrano during the 12-month period ending on the date of her election under section 6015(c). In this regard, we note that, according to the complaint for divorce, Mrs. Vetrano sought a divorce on the grounds of extreme cruelty, pursuant to N.J. Stat. Ann. sec. 2A:34-2(c) (West 2000). She did not seek divorce on the grounds of separation for a period of at least 18 or more consecutive months, a separate ground for divorce under the New Jersey divorce statute. See N.J. Stat. Ann. sec. 2A:34-2(d) (West 2000).

The language of section 6015(c)(3)(A)(i) makes it clear that this eligibility requirement must be met as of the date the election is filed. Section 6015(c)(3)(A)(i)(I) states that the electing spouse must be divorced or legally separated “at the time such election is filed", and section 6015(c)(3)(A)(i)(II) states that the electing spouse must not have been a member of the same household with the nonelecting spouse “during the 12-month period ending on the date such election is filed". If the taxpayer does not meet one of those requirements as of the date of the election, then the taxpayer is not eligible to elect relief under section 6015(c). See sec. 6015(c)(3)(A)(i). In that event, it would appear that the taxpayer must file a second election when he or she meets the requirements of section 6015(c)(3)(A)(i).

There is no basis in the record of this case for the statement in petitioners' posttrial brief that Mrs. Vetrano was legally separated from Mr. Vetrano at the time petitioner's posttrial brief was filed and her election under section 6015(c) was made. Furthermore, there is no evidence to show that Mrs. Vetrano was no longer married to Mr. Vetrano on the date of her election, nor is there evidence to show that she had not been a member of the same household as Mr.

Vetrano during the 12-month period ending on the date of her election. Therefore, we agree with respondent that, as of the date on which Mrs. Vetrano filed her election under section 6015(c): "She was not eligible to make the election." It is unnecessary for us to consider the other points raised in respondent's reply brief regarding Mrs. Vetrano's election under section 6015(c).

As noted above, in response to the Court's order giving the parties 30 days in which to request further trial, respondent alleges that petitioners were divorced after the date on which petitioners filed their posttrial brief, and, as of that later date, Mrs. Mrs. Vetrano met the the requirement of section 6015(c)(3)(A)(i)(I) and was eligible to elect under 6015(c). Respondent argues that the Court should permit the parties to present evidence concerning the date of Mrs. Vetrano's divorce because: "Even if the initial claim could not be decided on the basis that it was premature, this new evidence would cure that problem."

We agree with respondent that if Mrs. Vetrano became eligible to elect relief under section 6015(c) after the date of the first election, then she could make a second election under section 6015(c) and place the issue of her eligibility for relief under section 6015(c) before the Court in these proceedings. We have given her ample opportunity to do that. However, the election under section 6015(c) is Mrs. Vetrano's to make, and she has made it clear that she does not seek to make a second election. See sec. 6015(a)(2). We suspect that Mrs. Vetrano did not make a second election because there would be little to gain from a second election. In Vetrano I, we found that some part of the underpayment for 1993 was due to Mrs. Vetrano's fraud based on the fact that "she was aware of the payments received from BMAP during 1993, and she played an important part in converting the checks received from BMAP to cash." Were we to reach the merits of Mrs. Vetrano's election under section 6015(c), we, no doubt, would find her election invalid as to the payments from BMAP because she had "actual knowledge" of those payments. See sec. 6015(c)(3)(C). Having failed to make a second election during these proceedings, if Mrs. Vetrano attempts to make an election under section 6015(c) after the decision in this case becomes final, then the effect of the Court's deci

sion in this case will be governed by section 6015(g)(2), as discussed above.

On the basis of Vetrano I and the above discussion,

Decision will be entered for respondent.

ESTATE OF EDWARD WENNER, DECEASED, MERLYN WENNER RUDDELL, KATE WENNER EISNER AND JANN S. WENNER, CO-EXECUTORS, AND DALLAS CLARK, F.K.A. DOROTHY E. WENNER, PETITIONERS V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 12611-99.

Filed May 14, 2001.

Ps petitioned the Court for a review of R's determination not to abate interest under sec. 6404, I.R.C. In the petition C, one of Ps, raised a claim for relief from joint liability on a joint return pursuant to sec. 6015, I.R.C. (sec. 6015 claim). R moved to strike the sec. 6015 claim, asserting the Court lacked jurisdiction to determine such a claim in a sec. 6404, I.R.C., proceeding. Held, C's sec. 6015 claim is an affirmative defense in a matter properly before the Court. In such circumstances, we require no additional statutory jurisdiction to address and decide C's claim for sec. 6015, I.R.C., relief.

Michael L. Sandford, for petitioners.

Michael P. Breton, Bradford A. Johnson, and Gary Slavett, for respondent.

OPINION

LARO, Judge: Petitioners petitioned the Court to review respondent's determination not to abate interest pursuant to section 6404.1 Petitioner Dallas Clark also alleges in the petition that she should be relieved from joint liability as to Federal income tax returns which she filed with her nowdeceased husband for the relevant years. We must decide whether the Court has jurisdiction to decide Ms. Clark's claim as to joint liability. We hold that we have jurisdiction.

1 Unless otherwise indicated, section references are to the Internal Revenue Code in effect for the years in issue.

Background

Edward Wenner died in 1988. On or about March 1990 Kate Wenner Eisner, acting for the estate, and Ms. Clark executed a Form 870-P, Agreement to Assessment and Collection of Deficiency in Tax for Partnership Adjustments. On September 29, 1997, respondent sent to Edward (then deceased) and Dorothy Wenner (now Ms. Clark) notices of changes to their 1982, 1983, and 1984 joint Federal income tax returns. Those changes resulted from an examination of those returns and the related partnership returns. Respondent increased the amount of tax for each of the years and claimed interest in the following amounts:

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On or about February 12, 1998, Ms. Clark, on behalf of all petitioners, paid respondent the $11,539 in taxes specified in the notices.

Sometime after receiving the September 29, 1997, notices, petitioners requested that respondent abate the interest charged. On January 20, 1999, respondent notified Ms. Clark that the claim for abatement of interest under section 6404(e) was disallowed. On July 16, 1999, petitioners filed a timely petition for review of denial of request for abatement of interest. In that petition Ms. Clark also requested she be relieved from joint liability as to the relevant years.

Respondent moved to strike Ms. Clark's claim for relief from joint liability from the petition. Respondent asserts that the Court lacks jurisdiction with regard to that claim. Petitioners opposed that motion. Respondent responded stating in part: "After a diligent search of our records, respondent has determined that no claim or election for relief under I.R.C. 6015 (b) or (c) was filed by petitioner Ms. Clark, f.k.a. Dorothy E. Wenner, with the Internal Revenue Service in accordance with normal procedures."

Discussion

This is a matter of first impression. The issue we must decide is whether we have jurisdiction to decide an affirmative defense under section 6015 pled in a section 6404 petition for judicial review of respondent's determination not to abate interest. We first turn to this Court's jurisdiction.

Referring to this Court, the Court of Appeals for the Seventh Circuit recently noted: "[the Tax Court], like all Federal Courts, is a court of limited jurisdiction." Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 578 (7th Cir. 1999). The Tax Court has specialized jurisdiction and may exercise it only to the extent authorized by Congress. See Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The question of the Court's jurisdiction is fundamental and must be addressed when raised by a party. See id. at 530. The Court's jurisdiction to review respondent's determination whether to abate interest is now found in section 6404(i) (formerly designated as section 6404(g)). That section, so far as is relevant, provides:

SEC. 6404(i). REVIEW OF DENIAL OF REQUEST FOR ABATEMENT OF INTEREST.

(1) IN GENERAL.-The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430(c)(4)(A)(ii) to determine whether the Secretary's failure to abate interest under this section was an abuse of discretion, and may order an abatement, if such action is brought within 180 days after the date of the mailing of the Secretary's final determination not to abate such interest.

[Emphasis added.]

Section 6404(i) clearly grants the Court jurisdiction to review the Commissioner's failure to abate interest under all subsections of section 6404. See Woodral v. Commissioner, 112 T.C. 19, 22-23 (1999). However, the only explicit jurisdiction given to the Court under this section is jurisdiction to determine whether the Secretary's failure to abate interest under section 6404 was an abuse of discretion. The Court may order an abatement of interest where we have determined that the Secretary has abused his discretion.

There are two primary jurisdictional predicates for this Court to review a claim for relief from joint and several liability. First, a claim may be raised as an affirmative

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