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revenue laws or related statutes” as well innocent-spouse relief — and CCISO’s of horizontal equity and “fundamental
as any other duties and powers Treasury consideration of that request — was fairness” require that all taxpayers be
may prescribe. The IRS commissioner like any claim in a case “pending in Tax entitled to a final determination of relief
has redelegated the responsibility for Court” or more like an administrative from CCISO, regardless of where the
processing most requests for innocent- request for innocent-spouse relief made request for relief was submitted. The Tax
spouse relief to the CCISO. In addition, with CCISO. The court found it was Court dismissed the argument because it
Sec. 7803 authorizes the IRS Chief more like the former, noting that its own found that it did not have the power to
Counsel to represent the IRS in cases jurisdiction was not dependent on an adopt the remedy she requested.
before the Tax Court. IRS administrative determination but ■ DelPonte, 158 T.C. No. 7 (2022)
DelPonte argued that Treasury has depended only on a timely filed petition
delegated authority to make a final and a valid notice of deficiency. — P. Jeffrey Christakos, CPA/PFS, MBA, is
determination to the administrative side Regarding DelPonte’s argument that a tax partner at Christakos & Co. in West-
of the IRS, and, therefore, the CCISO’s the OCC instructs its attorneys gener- field, N.J., and Maria M. Pirrone, CPA,
position should be final. The OCC ally to accept CCISO’s determinations, LL.M., is an associate professor of taxation,
argued that it is responsible for deciding the Tax Court noted that this argument St. John’s University, Queens, N.Y.
what positions the IRS takes in litiga- was based not on delegation but on what
tion, and because this issue was raised in DelPonte identified as a possible protec-
a deficiency proceeding, it is not bound tion of the Due Process Clause of the
by CCISO’s determination. U.S. Constitution — “a requirement that
In the alternative, DelPonte argued the government follow the procedures
that in Chief Counsel Notice CC-2009- that it establishes even if it didn’t have
021 (June 30, 2009), the Chief Counsel to establish them in the first place” (slip
had redelegated the power to make deter- op. at 13).
minations about innocent-spouse relief to The Tax Court rejected this argu-
CCISO, and, therefore, it was bound by ment because it determined that OCC
CCISO’s determinations. The Tax Court lawyers were following the established
quickly dismissed that argument, noting procedures. The Tax Court found that
that the Chief Counsel has the authority the Chief Counsel notices and the
to delegate functions only to an “officer IRM tell CCISO to provide “assis-
or employee in the Office of the Chief tance,” not to make the final determi-
Counsel” (Internal Revenue Manual nation, and that OCC attorneys retain
(IRM) §1.1.13.123.3 (Sept. 1, 2005)), their discretion to adopt or reject
and CCISO is not within the OCC. CCISO’s conclusion. The court noted IRS agent’s receipt of a
copy of an LLC’s return
In addition, DelPonte argued that that IRM Section 25.15.12.25.2(1)
because the OCC instructs its at- (Nov. 9, 2007) states that if innocent-
torneys generally to accept CCISO’s spouse relief is raised for the first time constitutes its filing,
Ninth Circuit holds
determinations, the OCC was required in a case already docketed in court,
to follow CCISO’s determination in “[j]urisdiction is retained by … Coun-
If a delinquent return is
her case. sel, and a request is sent to CCISO
Holding: The Tax Court held that to consider the request for relief ” and submitted to and received by an
authorized IRS official requesting
where a taxpayer raises an innocent- specifies that “Counsel ... has func-
spouse relief claim as a defense for the tional jurisdiction over the matter and it, the return need not be sent
first time in a deficiency proceeding, as handles the case and request for relief, to an IRS service center to be
DelPonte had, the Chief Counsel has and either settles or litigates the issues considered filed, the appellate
the final authority over whether the IRS on its merits, as appropriate” (IRM court stated.
will litigate. As a result, the court denied §25.15.12.25.2(3)). Thus, in making
By Paul Bonner
her motion for an entry of decision their own determinations regarding
granting her innocent-spouse relief innocent-spouse relief, OCC attorneys Reversing the Tax Court, the Ninth
under Sec. 6015(c). were following the procedures in the Circuit held that a partnership filed
The court found that to settle this relevant guidance. its return when, in response to an
dispute, it must answer the question Lastly, DelPonte posited an argument IRS revenue agent’s letter, it faxed
of whether DelPonte’s request for based on fairness, arguing that principles the agent a signed copy of the return,

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