and a refund pursuant to section 6015(g) was not before the District Court and (2) the District Court did not address the plain and clear language of section 6015(a) and (g).

Respondent relies on McIntyre v. United States, supra, for the proposition that a Federal tax lien attaches to the entire community property and that section 6321 takes precedence over section 6015. In McIntyre, the U.S. Court of Appeals for the Ninth Circuit, to which this case is appealable, considered whether the Commissioner may levy upon ERISA-regulated pension benefits to satisfy a husband's tax debt against the claim that the wife has a vested interest in half of those benefits pursuant to California community property laws. Id. at 657. The Court of Appeals noted:

We have held before that, by granting creditors recourse against the whole community estate on debts of only one spouse, California law "implicitly" establishes that spouse's "interest" in the whole of the community property, at least to a degree sufficient for the IRS to impose tax liens under the Internal Revenue Code. *** [Id. at 658.]

Mrs. McIntyre argued that ERISA preempts California community property law and that ERISA's antialienation provision prevented the IRS from levying on the benefits from any ERISA-governed pension plan.2 Id. at 659, 660. The court stated: "This "This argument relies on an over-exuberant interpretation of ERISA's anti-alienation provision" and rejected the premise that ERISA's antialienation provision would preclude operation of California community property law to the extent that it would permit creditors to proceed against the pension benefits at issue. Id. at 659. In rejecting this premise, the court stated: "ERISA's anti-alienation provision plainly does not preempt the operation of California law" because "ERISA itself has a saving clause that states: 'Nothing in this subchapter [which includes the anti-alienation provision] shall be construed to alter, amend, modify,

2 The court also rejected Mrs. McIntyre's argument that California community property law gave her a vested interest in half of her husband's pension benefits and the IRS could not therefore levy on this half of the pension benefits. McIntyre v. United States, 222 F.3d 655, 658-659 (9th Cir. 2000). The court relied on Cal. Fam. Code sec. 910(a) and the reasoning in Babb v. Schmidt, 496 F.2d 957 (9th Cir. 1974), and held that creditors have recourse over the whole of the community property. Id. The issue before us, regarding the preemption of community property laws by sec. 6015(a) and (g), and the application of sec. 6015, however, were not at issue in McIntyre.

invalidate, impair, or supersede any law of the United States."" Id. at 659, 660 (insertion in original).

McIntyre is distinguishable from this case. First, McIntyre deals with ERISA and not section 6015. Second, section 6015(a) and (g), unlike ERISA, expressly preempts community property law. Sec. 6015(a) (section 6015 determinations are made “without regard to community property laws"), (g) (refunds are made "notwithstanding any other law or rule of law (other than section 6511, 6512(b), 7121, or 7122)"). Third, section 6015 has no saving clause like ERISA.

b. Section 6015 Was Enacted Later

Even if section 6015 and section 6321 are in conflict, section 6015 controls because section 6015 was enacted later than section 6321 and supersedes section 6321 insofar as the two sections are in conflict. See McLean Trucking Co. v. United States, 321 U.S. 67, 79 (1944); Adkins v. Arnold, 235 U.S. 417, 421 (1914); Specking v. Commissioner, 117 T.C. 95, 116 (2001), affd. sub nom. Haessly v. Commissioner, 68 Fed. Appx. 44 (9th Cir. 2003).

Thus, I believe section 6015(g)(1) takes precedence over section 6321 where the IRS or the Court determines a taxpayer is entitled to section 6015 relief.

E. Legislative History of Section 6015

The legislative history regarding refunds pursuant to section 6015 is scant. The House report states: "The Tax Court may order refunds as appropriate where it determines the spouse qualifies for relief and an overpayment exists as a result of the innocent spouse qualifying for such relief." H. Rept. 105-364 (Part 1), supra at 61, 1998–3 C.B. at 433. The conference and Senate reports state: "The separate liability election may not be used to create a refund, or to direct a refund to a particular spouse." H. Conf. Rept. 105-599, supra at 250, 1998-3 C.B. at 1004; S. Rept. 105-174, supra at 59, 1998-3 C.B. at 595.

The legislative history of section 6015 supports calculating the refund on the basis of the amount paid by the electing spouse without regard to community property laws towards the understatement or underpayment attributable to the

nonelecting spouse. Under the heading "Reasons for change”, the Senate report states:

The Committee believes that a system based on separate liabilities will provide better protection for innocent spouses than the current system. The Committee generally believes that an electing spouse's liability should be satisfied by the payment of the tax attributable to that spouse's income and that an election to limit a spouse's liability to that amount is appropriate. [S. Rept. 105-174, supra at 55, 1998–3 C.B. at 591.]

The limited legislative history, however, is immaterial in the light of the plain and precise language of the statute. Mansell v. Mansell, 490 U.S. at 592, 594. "Congress is not required to build a record in the legislative history to defend its policy choices." Id. at 592.

F. Common Law States and Community Property States

Section 6015 applies to taxpayers in common law jurisdictions and community property jurisdictions. Denying petitioner a refund of community assets used to pay Mr. Ordlock's understatements creates an inequity between taxpayers in community property jurisdictions and taxpayers in common law jurisdictions.

To obtain a refund pursuant to section 6015, taxpayers in common law jurisdictions, like the electing spouse in Washington, must prove the amount they paid toward the underpayment or understatement attributable to the nonelecting spouse (i.e., do tracing). See Washington v. Commissioner, 120 T.C. at 163; Rooks v. Commissioner, T.C. Memo. 2004-127. The majority prevents taxpayers in community property States from obtaining refunds of community property payments that can be traced to the spouse entitled to relief. I believe the directive in section 6015(a) and (g) to disregard community property laws indicates Congress's intent to treat taxpayers in community property jurisdictions and common law jurisdictions the same.

In Washington v. Commissioner, supra at 159, the Court noted that "section 6015(g) is very specific with respect to the limitations placed on a refund". As in Washington, petitioner's relief should not be limited merely to relief from joint and several liability as respondent contends. Accordingly, I would conclude that community property laws are dis

regarded in determining the amount of petitioner's refund pursuant to section 6015(g).

II. Amount of Petitioner's Refund

If, in a community property State, an electing spouse who is entitled to section 6015(b) or (f) relief has made payments towards the understatement/underpayment attributable to the nonelecting spouse, the electing spouse is entitled to a refund of the amounts applied to the understatement or underpayment attributable to the nonelecting spouse and paid by the electing spouse without regard to community property laws.

This is how the refund was calculated in Washington. In Washington, the taxpayer was employed as a Federal purchasing agent. Washington v. Commissioner, supra at 139. The taxpayer's spouse was a self-employed carpenter who did not pay self-employment taxes. Id. The taxpayer's wages were garnished, and her overpayments from subsequent years (listed on returns she filed separately from her spouse) were applied to pay her spouse's liability. Id. at 140. The Court held that the taxpayer was entitled to a refund of the amount she paid toward the underpayment attributable to her former spouse (i.e., the amount it was inequitable to hold the taxpayer liable for pursuant to section 6015(f)). Id. at 163; see also Leissner v. Commissioner, T.C. Memo. 2003191 (taxpayer granted relief under section 6015(f) was entitled to refund of moneys taken from her individual retirement account to pay tax liabilities attributable to her former spouse).

The record consists solely of the Forms 4340, Certificate of Assessments, Payments and Other Specific Matters, for Bayard M. and Lois Ordlock for 1982, 1983, and 1984, which do not show how much petitioner paid towards Mr. Ordlock's understatements without regard to community property laws. To decide whether petitioner has made an overpayment, I would hold-as the parties agree-that the Court needs additional evidence of the amounts petitioner paid without regard to community property laws toward Mr. Ordlock's understatements. See Washington v. Commissioner, supra; Rooks v. Commissioner, supra; Leissner v. Commissioner, supra. I would conclude that petitioner is entitled to

a refund of these payments. I would hold that petitioner bears the burden of proof on this issue. See Rule 142(a).3 Additionally, I would note the applicability of the 2-year rule of section 6511, which is not excepted by section 6015(g)(1). See Washington v. Commissioner, supra at 160-163. As the Court would require additional evidence for resolution of this case, and as the parties agreed to leave the record open, I would hold that this case could no longer be submitted under Rule 122.

III. Additional Problems With the Majority Opinion

A. This Is a Section 6015 Case; Collection Is Not in Issue

The majority basically holds that disregarding community property law, for purposes of section 6015, would create a statutory exception to the rule that "State law defines ownership interests in property for purposes of Federal tax collections under section 6321." Majority op. p. 52; see also majority op. pp. 56, 57, 59. This is a section 6015 case, not a collection (section 6330) case. As the majority states: "The issue for decision is the amount of refund, if any, petitioner is entitled to under section 6015(g)." Majority op. p. 48.

Collection is independent from the determination of whether a taxpayer is an "innocent spouse" and the amount of the refund a taxpayer is entitled to upon a finding that he/ she is an innocent spouse. Respondent's collection rights are not at issue in this case. This leads to my next point.

B. Legal or Statutory Voids? "General" State Property Laws Define the Source of the Payments

The majority opines that if California community property laws are disregarded to determine the amount of petitioner's refund, the Court will be left "with no law or resource to define the [source of] ownership of the payments made" on the tax liabilities for the years in issue. Majority op. pp. 56, 57, 59. If the Court disregarded community property laws when determining the amount of section 6015(g) refunds, the Court would not be left in a void without any guidance any more than State courts in community property States are in

3 Sec. 7491(a) is inapplicable to this case as respondent's examination of the 1982, 1983, and 1984 tax years began before July 22, 1998. See Higbee v. Commissioner, 116 T.C. 438, 440 (2001).