John P. Crowley and Elizabeth R. Cockrell - Page 22

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               We note that the transitional rule does provide, in                    
          pertinent part, the following:                                              

                   "(D) without regard to any determination before                   
               October 21, 1988, the other spouse establishes that in                 
               signing the return he or she did not know, and had no                  
               reason to know, that there was such an understatement,                 
                       *     *     *     *     *     *     *                          

               notwithstanding any law or rule of law (including res                  
               judicata), the other spouse shall be relieved of                       
               liability for tax (including interest, penalties, and                  
               other amounts) for such taxable year to the extent such                
               liability is attributable to such understatement,                      
               * * *.  [TAMRA sec. 6004, 102 Stat. 3685; emphasis added.]             
               The Court of Appeals for the Fifth Circuit has found that              
          the purpose of the foregoing language is to enable a taxpayer,              
          who meets the requirements of the transitional rule, to be                  
          relieved of liability for an understatement as an innocent spouse           
          notwithstanding a decision as to the taxpayer's liability prior             
          to the enactment of the transitional rule.  Park v. Commissioner,           
          25 F.3d 1289, 1300 (5th Cir. 1994), affg. T.C. Memo. 1993-252.              
          Similarly, another court has concluded that the foregoing                   
          provisions were intended to make the relief afforded by the                 
          transitional rule "available to a person who did not have its               
          benefit when her case was determined".  In re Freytag, 173 Bankr.           
          330, 334 (N.D. Tex. 1994).  We, however, do not need to decide              
          whether the foregoing language of the transitional rule requires            
          us to resolve the question whether petitioner qualifies for                 
          relief as an innocent spouse under the transitional rule where it           
          was first raised in a motion for reconsideration and could have             



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