This post was originally published on Forbes Apr 6, 2015
It probably would have been a bad idea idea for Maria Sanchez to file a joint return with her estranged spouse for 2006. She didn't do it and apparently was not required to file a return on her own. Her not quite ex, Francisco A. Sanchez Rodriguez, did file. He claimed to be single. From there it got a bit strange resulting in what is one of the oddest innocent spouse cases I have ever seen. It seemed that the IRS nailed Ms. Sanchez with a Catch-22, but at least one expert has some optimism that she might do better in the next round, if there is one.
I suspect that that is what the revenue agent expected. That division between tax determination and collection appears to be even stronger in the IRS. Once you consent to the assessment, the examining agent is done.
Subject to a variety of limitations and conditions, spouses may elect to file a joint return after separate returns have been filed. See sec. 6013(b). According to petitioner, the consent should be treated as a joint return for purposes of section 6015. Considering that the consent was, in effect, treated as a joint return by the revenue agent who examined Mr. Rodriguez' return, petitioner's argument has more than a little attraction. Nevertheless, we are unable to fit the round peg of her argument into the square hole of technical requirements.
Generally, pursuant to section 6011(a) a taxpayer obligated to file a Federal tax return must conform to the forms and regulations prescribed by respondent. Even though signed by petitioner and Mr. Rodriguez, the consent is hardly a form described in section 6011 or section 1.6011-1, Income Tax Regs. Furthermore, a Form 4549 is not signed by the taxpayer under penalties of perjury, one of the critical requirements for a document to be treated as a Federal income tax return. Petitioner's argument that the consent should be treated as a joint return is rejected.
In closing we think it is appropriate to state that nothing in this Summary Opinion should be taken as a comment as to the validity of the assessment made against petitioner on the basis of the consent. Otherwise, because the tax liability to which petitioner's request for section 6015 relief relates was not assessed pursuant to a joint return, she is not entitled to the relief she seeks in this proceeding.
If the IRS stubbornly continues to pursue collection, it seems to me that the taxpayer could file a petition in Tax Court alleging that the IRS had not followed the deficiency procedures and was collecting the tax based upon an illegal assessment. The Tax Court would almost certainly rule in the taxpayer’s favor.
At the end of the day, it turns out that the taxpayer in Sanchez, not the IRS, may be the ultimate winner in this dispute.