Another District Court Holds It Lacks Jurisdiction to Consider Innocent Spouse Refund Suits – at Least for Section 6015(f) Underpayment Cases

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Last year, in Chandler v. United States, 2018 U.S. Dist. LEXIS 174482 (N.D. Tex. Sept. 17, 2018) (magistrate opinion), adopted by judge at 2018 U.S. Dist. LEXIS 173880 (N.D. Tex. Oct. 9, 2018) (on which Keith blogged here), a district court – relying mostly on a majority of other district courts holding that section 6015 innocent spouse relief can’t be raised as a defense in collection suits – held that section 6015 relief can’t be raised in refund suits, either. The Chandler and other courts reasoned that, by creating section 6015(e) allowing for a stand-alone Tax Court proceeding to review denials of innocent spouse relief, Congress (with one minor exception) wanted the Tax Court to be the exclusive court to consider section 6015 relief. Chandler prompted Nina Olson in her 2018 Annual Report to Congress to add to her Congressional wish list that already included an overruling of the collection opinions an overruling of Chandler as to district court refund suits considering innocent spouse relief. See my post on her report here.

Well, Chandler has a companion now: In Hockin v. United States, on May 1, a magistrate in the district court of Oregon held that, at least for section 6015(f) underpayment cases, the district court lacks jurisdiction to award innocent spouse relief in refund suits because the Tax Court, under section 6015(e), is the sole location for reviewing denials of that relief.

This ruling is particularly disappointing, since both the Lewis and Clark School of Law and Harvard tax clinics extensively briefed this issue in Hockin – probably for the first time – including discussing case law under former section 6013(e) and quoting from the legislative history of the 1998 legislation adopting section 6015 and the 2000 legislation amending section 6015(e) to add the phrase “in addition to any other remedy provided by law”. This 2000 amendment and another were intended to (1) reject confusion over the issue of whether section 6015(e) was the exclusive avenue for judicial review of IRS innocent spouse rulings and (2) clarify that refund provisions apply both “administratively and in all courts”, not just in the Tax Court.

After allowing a period for the parties to object to the ruling, the district court in the Hockin case will now review the magistrate’s opinion.

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In Hockin, the husband of the taxpayer apparently filed joint 2007 and 2008 returns while the couple were in the process of divorcing. The returns showed balances due, all attributable to the husband’s businesses. But he did not pay the balances. She now says that she never signed the returns and did not authorize them. Their divorce decree says that the husband agrees to pay all liabilities for 2007 and 2008. In a Collection Due Process hearing only involving 2008, the IRS agreed to abandon collection from the taxpayer because it concluded that she did not file a joint return for that year. The IRS does not now have a copy of the 2007 return, so it cannot be looked at to determine whether Ms. Hockin is correct that she did not sign it.

For 2007, Ms. Hockin also filed a Form 8857 seeking innocent spouse relief from the underpayment. Relief was denied, but she did not petition the Tax Court for review under section 6015(e). Thereafter, the IRS fully collected the balance of the 2007 liability from her, mostly by taking later-year refunds. Then, she filed a refund claim on an amended return, arguing that she did not file a joint return, and, if she did, she was entitled to innocent spouse relief. The case involves about $10,000 of liability.

In Ms. Hockin’s district court suit, she seeks a refund on the grounds that (1) she did not file a joint return for 2007, (2) the IRS was required to give her relief for 2007 because it had given relief for 2008 (quasi-estoppel), and (3) if she had filed a joint return for 2007, she is entitled to innocent spouse relief from what had originally been an underpayment, under section 6015(f).

The DOJ moved to dismiss the case for lack of jurisdiction under FRCP 12(b)(1). During the course of the filings on the motion, the DOJ realized that Ms. Hockin had made a statement in her refund claim that she did not file a joint return. District courts have long heard refund suits where the taxpayer claimed that he or she had not filed a joint return. See, e.g., McCord v. Granger, 201 F.2d 103 (3d Cir. 1952); Anderson v. United States, 48 F.2d 201 (5th Cir. 1931). So, the DOJ agreed that this claim should go forward in district court and changed its motion to one only for partial summary judgment. The magistrate agreed that this “no return” refund suit claim may go forward.

In the opinion, the magistrate further held that the quasi-estoppel claim cannot be heard because it was not raised in the refund claim – i.e., that the argument fell afoul of the substantial variance rule prohibiting a court from considering issues not raised in refund claims.

But, the focus of the magistrate’s opinion was on the issue of whether the district court has jurisdiction to consider section 6015(f) relief in a refund suit (or whether it has jurisdiction to consider (f) relief for underpayment cases in a refund suit – the opinion not being too clear between the two statements of the issues).

I won’t repeat all of the reasoning of the court on the section 6015(f) issue, as that part of the opinion is 14 pages in length. But, here is a synopsis:

The court notes that, even if refund suits involving innocent spouse relief had been heard under the original innocent spouse provision, section 6013(e) (in existence from 1971 to 1998), those refund suits involved relief from deficiencies, not underpayments. Section 6015(f) first allowed relief from underpayments in 1998. Thus, there was no prior history of underpayment innocent spouse refund suits until section 6015 was enacted, along with the stand-alone Tax Court review provision at section 6015(e). Thus, section 6015(e) is arguably the only statutory way to review (f) underpayment rulings by the IRS. And, it was not until 2006 that Congress specifically added subsection (f) relief to the Tax Court’s jurisdiction in stand-alone cases. There is no discussion in the 2006 legislative history of the amendment to section 6015(e) of the possibility of going to the district courts for subsection (f) refund suits. (Note, however, there is a rare case where a district court refund suit is allowed to proceed about section 6015 relief: Under section 6015(e)(3), where a section 6015(e) suit is filed in the Tax Court while a district court refund suit was already pending, the section 6015 issues are transferred over to the district court for it to consider as part of the existing suit.)

The magistrate in Hockin acknowledged that there is some legislative history in 1998 and 2000 indicating that Congress thought that district courts could and should hear section 6015 refund suits generally, but the magistrate did not find any statutory language enacted to specifically so provide and would not let legislative history confer jurisdiction on a court.

The magistrate also discussed the language added to subsection (e) in 2000 providing that the stand-alone provision was intended to be “in addition to any other remedy provided by law”, writing:

Indeed, the Conference Committee Report states:

Non-exclusivity of judicial remedy. Some have suggested that the IRS Restructuring Act administrative and judicial process for innocent spouse relief was intended to be the exclusive avenue by which relief could be sought. The bill clarifies Congressional intent that the procedures of section 6015(e) were intended to be additional, non-exclusive avenues by which innocent spouse relief could be considered.

H.R. CONF. REP. 106-1033, l 023. However, this does not make explicit that an innocent spouse claim, after denial by the Secretary, may be made in a refund suit. The “any other remedy” language does not create jurisdiction where jurisdiction did not exist prior to the 2000 amendments. When Congress enacts a specific remedy when no remedy was previously recognized, or where it was “problematic” whether any judicial relief existed at all, the remedy provided is generally regarded as exclusive. Block v. N. Dakota ex rel. Bd. Of Univ. & Sch. Lands, 461 U.S. 273,285 (1983).

The court analogized this situation to that involved in Hinck v. United States, 550 U.S. 501 (2007). In Hinck, the issue was whether refund suits could be maintained in district court over whether the IRS had abused its discretion under section 6404(e) in failing to abate certain interest incurred as a result of unreasonable IRS delays. In Hinck, the Court pointed out that, prior to 1996, no court had found that the IRS’ interest abatement decisions were subject to judicial review because Congress had given the IRS full discretion on abatement, without setting out a judicial review standard. In 1996, Congress both added a review standard (“unreasonable”) and a special provision for Tax Court review at section 6404(h). Because the new Tax Court review provision was much narrower than the general refund suit jurisdictional grant at 28 U.S.C. section 1346(a)(1), the Supreme Court held that Congress intended that the only review of interest abatement decisions was through Tax Court section 6404(h) proceedings.

The magistrate in Hockin dismissed the taxpayer’s argument that Hinck was distinguishable because there had been a history of refund suits under former section 6013(e) (and even a few under section 6015). In the magistrate’s view, the amendment of section 6015(e) in 2000 to add “in addition to any other remedy provided by law” was ambiguous, and only the 2006 amendment of section 6015(e) to allow Tax Court consideration of (f) relief was important.

The magistrate also was not persuaded to give any weight to the positions taken both by (1) the IRS in a 2000 Chief Counsel notice that all courts (including the district courts) could consider section 6015(f) relief and (2) the DOJ Tax Division Appellate Section in recent appellate cases involving untimely section 6015(e) filings arguing that the taxpayers could always pay and sue for a refund arguing for innocent spouse relief in district court. The magistrate was also not impressed by Nina Olson’s having argued since 2007 that section 6015 should be clarified to make its relief something that can be raised as a defense in a collection suit in district court. Indeed, the magistrate thought Congress’ failure to act on her request for this long telling against her interpretation of current law, writing:

[A]lthough Congress acted almost immediately to amend the legislation to provide for review in the Tax Court when alerted by the Eighth and Ninth Circuits that the Tax Court lacked jurisdiction to hear such equitable claims, Congress’ decided inaction in the face of the National Taxpayer Advocate’s concerns via yearly reports since 2007, suggests Congress intended 26 U.S.C. § 6015(e) to limit review of a stand-alone subsection (f) claim to the Tax Court.

Observations

Keith and I are not exactly disinterested about the Hockin case. We caused the tax clinic at Harvard to file an amicus memorandum supporting the taxpayer. As a result, much of the opinion of the magistrate is a direct response to what we wrote in the memorandum.

Ms. Hockin was actually represented by the Lewis & Clark School of Law Low-Income Taxpayer Clinic. A student for the clinic, John MacMorris-Adix, argued the motion before the magistrate. Because most clinics do little in district courts, not surprisingly, the Lewis & Clark clinic sought help from lawyers on its pro bono panel. The assisting lawyer was Scott Moede, who works for the City of Portland. Mr. Moede was acting in his personal capacity, though, not on behalf of the City.

I am sure that this was the best-briefed motion on section 6015 relief that any district court has yet considered. In many cases, such as Chandler, taxpayers did not even file responses to DOJ motions to dismiss the section 6015 relief claims. So, it is not surprising that the district courts seemed to just copy and paste from DOJ filings saying that there was no jurisdiction.

Readers of the Hockin opinion may also want to consider a piece of legislative history which, though quoted in the Harvard memorandum, was not included in the magistrate’s opinion. While the magistrate quotes the part of the 2000 legislative history behind adding the words “in addition to any other remedy provided by law”, the magistrate does not quote the part of that same report that accompanied the moving of the refund rules out from under 6015(e) (involving only the Tax Court suit) to a new subsection (g). The omitted paragraph reads as follows:

Allowance of refunds.—The current placement in the statute of the provision for allowance of refunds may inappropriately suggest that the provision applies only to the United States Tax Court, whereas it was intended to apply administratively and in all courts. The bill clarifies this by moving the provision to its own subsection.

H. Rep. 106-1033 at 1023 (emphasis added). This seems another strong indication that Congress thought district courts in refund suits should be able to award 6015 relief. But, this will have to be a discussion saved for a court of appeals, if the Hockin case gets that far.

And the magistrate was simply legally wrong, for purposes of the Hinck analogy, in assuming there was no way to get judicial review of (f) underpayment cases until subsection (f) was added to subsection (e) in 2006. The magistrate neglected to appreciate that Collection Due Process allowed the Tax Court to consider (f) underpayment relief as early as 1998 through the CDP “spousal defenses” language. Amending section 6015(e) in 2006 merely added a second avenue for the Tax Court to give judicial review of (f) underpayment IRS rulings.

The parties are allowed to file objections to the magistrate’s opinion in Hockin, and a district court judge will be the ultimate one ruling on the motion for the district court.

Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he will be Acting Director from January to June 2019.

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