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had already granted her relief. The OCC litigating position. The OCC, in rep- and CCISO was not within the OCC,
continued to argue that CCISO did not resenting the IRS, may ask CCISO for so this argument was not valid.
speak for the IRS in cases it litigated. its advice but gets the final say in deter- The Tax Court, reformulating this
DelPonte then moved in Tax Court for mining the IRS’s position on innocent- claim, considered whether, because the
entry of decisions in her favor. spouse relief. Chief Counsel had instructed OCC
The Tax Court, finding that Del- The Tax Court agreed with the IRS lawyers to adhere to CCISO determi-
Ponte’s motion was “really more like one that the lawyers of the OCC are respon- nations in a deficiency case, the OCC
for partial summary judgment on the sible for the IRS’s litigation decisions. lawyers were required to follow those
issue of whether DelPonte is entitled to The question the court was required to instructions. According to DelPonte, this
relief under section 6015(c) because the answer, then, was whether DelPonte’s argument would not be based on powers
CCISO determined that she is,” treated request for innocent-spouse relief and of delegation but on “a possible protec-
the motion as such. CCISO’s consideration of that request tion of the Due Process Clause — a
was like any claim in a case “pending requirement that the government follow
The Tax Court’s decision in Tax Court,” or more like an admin- the procedures that it establishes even
The Tax Court denied DelPonte’s mo- istrative request for innocent-spouse if it didn’t have to establish them in the
tion for entry of decision, finding that relief begun by filing a Form 8857 first place.”
where a taxpayer raises innocent-spouse with CCISO. The Tax Court rejected this argu-
relief as an affirmative defense for the The Tax Court found that her re- ment because it concluded that OCC
first time in a petition that invokes the quest for innocent-spouse relief was the attorneys handling deficiency procedure
court’s deficiency jurisdiction under former. The court noted that taxpayers cases had been following established
Sec. 6213(a), the IRS’s counsel has final were raising innocent-spouse claims procedures. Reviewing CC-2009-21 and
authority to concede or settle the issue as affirmative defenses in deficiency other related Chief Counsel notices, as
with the taxpayer. proceedings years before the creation of well as the relevant sections of the IRM,
DelPonte argued that the Treasury today’s administrative processes for seek- the court found OCC lawyers were
secretary has delegated authority to ing relief. Furthermore, its power under instructed that they generally should fol-
make a final determination of innocent- Sec. 6213(a) to decide issues in low a CCISO determination but
spouse relief to the administrative, not deficiency proceedings was not limited were not required to do so. The Tax
the litigating, side of the IRS, based on to the issues listed in the notice of Court held that “the Chief Counsel no-
the regulations, numerous Internal deficiency. Moreover, jurisdiction to tices and the IRM all tell CCISO
Revenue Manual (IRM) provisions, decide an issue in a deficiency case is to provide ‘assistance,’ not to make a
the OCC’s own written guidance, not dependent on an IRS administra- final determination, and that Chief
and the instructions to Form 8857. tive decision; all the court requires to Counsel attorneys retain their
She further argued that her position have jurisdiction to render a decision is discretion to adopt or reject CCISO’s
was supported by the principles of hori- a timely filed petition and a valid notice conclusions.”
zontal equity and fundamental of deficiency. The Tax Court last addressed Del-
fairness, contending that under these Once it has jurisdiction over a case Ponte’s argument that principles of
principles a requesting spouse where innocent-spouse relief is at issue, horizontal equity and “fundamental
raising innocent-spouse relief for the the IRS must concede or settle it with a fairness” require that all taxpayers be
first time in litigation should have taxpayer if it does not want to litigate it. entitled to a final determination of relief
CCISO make the determination, just Sec. 7803(b)(2) and related delegation from CCISO, regardless of whether
as if he or she had raised it for the first orders have long delegated those deci- they first request relief in a petition for
time in a stand-alone request. Accord- sions to the Chief Counsel. redetermination of a deficiency, in a
ing to DelPonte, CCISO makes the DelPonte argued that under Chief stand-alone petition, or in a CDP hear-
innocent-spouse relief determination, Counsel Notice CC-2009-021, the ing. In DelPonte’s eyes, it was unfair
and the OCC’s job is only to defend Chief Counsel had redelegated its that while taxpayers who seek innocent-
CCISO’s determination. authority to CCISO to make the spouse relief have the opportunity for a
The IRS, on the other hand, argued innocent-spouse relief determination. determination by CCISO and review by
that the OCC is responsible for deciding The Tax Court found that under IRM IRS Appeals and the Tax Court, taxpay-
what positions the IRS takes in litiga- Section 30.2.2–6, the Chief Counsel ers who, like her, requested relief in a
tion, and the decision about whether only had authority to delegate functions deficiency proceeding get a review by the
to concede innocent-spouse relief is a to an officer or employee in the OCC, Tax Court only.

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