Bryan T. Camp (Texas Tech) has published Between a Rock and a Hard Place, 108 Tax Notes 359 (July 18, 2005) also available on the Tax Analysts web site as Doc 2005-14239, 2005 TNT 138-30.  Here is the Introduction:

Today’s column discusses the Tax Court’s jurisdiction to hear stand-alone petitions from taxpayers who have been denied equitable relief under § 6015(f), one of the three spousal relief provisions contained in § 6015. Congress enacted § 6015 in the IRS Restructuring and Reform Act of 1998 (RRA 98) to replace the old "innocent spouse" provisions in § 6013(e). My prior columns have focused on how RRA 98 inserted inappropriate adversarial process checks on the traditional inquisitorial process of tax collection (using the collection "delay" process provisions in §§ 6320 and 6330 as a prime example). The jurisdictional controversy over § 6015(f) reveals a different problem: how Congress pinned the Tax Court between the rock of sovereign immunity and the hard place of doing equity. Thus caught between the commands of the head and the demands of the heart — to use historian Perry Miller’s famous dichotomy — the Tax Court has made the wrong choice. This column explains why.

The problem arises from a laudable congressional effort to make the code fairer. In 1998 Congress sought to expand how taxpayers who had signed joint returns could be relieved of the resulting joint liability. Congress charged the Tax Court the responsibility of reviewing IRS application of the law, both in § 6015 and simultaneously in the collection due process (CDP) provisions of §§ 6320 and 6330. But the taxwriters goofed up § 6015 and failed to make the Tax Court’s authority commensurate with its responsibility.

Section 6015 compromises two different visions of joint liability relief: one proposed by the House Ways and Means Committee and the other proposed by the Senate Finance Committee. I’ll have more to say about those competing visions in my next column. Right now, I’ll note that the unhappy result of the compromise is that literal language of the statute pinches off Tax Court review of § 6015(f) determinations when there is no deficiency at issue. Was it deliberate? No matter. It was done. That it was poorly done is of little use to the Tax Court, which sucks the jurisdictional air it breathes through nozzles of statutory grants of authority. Shut those off and the Tax Court is bereft. The irony here is that in its attempt to expand equity, Congress created inequity. That is, taxpayers who seek their day in court through § 6015(e) are barred, but taxpayers who successfully obtain their CDP hearing and present their claim for spousal relief can then obtain Tax Court review, regardless of whether the IRS is trying to collect a self-reported tax or a deficiency. Substantive equity without procedural equity is no equity at all. That, in a nutshell, is why one can be entirely sympathetic to the Tax Court’s creative overreaching in Ewing to inflate its jurisdiction under § 6015. But the Tax Court is wrong on the law and no amount of huffing can make it right.

I am prompted to this subject by the Eighth Circuit’s call for amicus briefs in Bartman v. Commissioner (No. 04-2771), on appeal from T.C. Memo. 2004-93 [Editor’s note: previously blogged here and here]. Accordingly, Part I explains the issue confronting the Eighth Circuit in Bartman. Part II discusses the structure and history of § 6015. Part III suggests the proper resolution of Bartman (the Tax Court has no jurisdiction).