Rosemarie Meyer - Page 15

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          disallowed deduction or an item of omitted income.  Price v.                
          Commissioner, 887 F.2d at 963.  For disallowed deductions, the              
          taxpayer must establish that "she [or he] did not know and did              
          not have reason to know that the deduction would give rise to a             
          substantial understatement."  Id.                                           
               In cases involving the omission of income, a slightly higher           
          hurdle for the taxpayer exists:  the relief-seeking spouse must             
          show that she did not know, and should not have known, of an                
          income-producing transaction that her spouse failed to report on            
          their joint return, thus giving rise to the substantial                     
          understatement.  Hayman v. Commissioner, 992 F.2d at 1261; see              
          Langberg v. Commissioner, T.C. Memo. 1994-223.  The Court of                
          Appeals for the Second Circuit in Friedman succinctly stated the            
          rationale for the differing standards:  "[A]pplying the omission            
          of income test to cases involving the disallowance of deductions            
          would eviscerate the innocent spouse defense, since merely                  
          looking at the tax return informs the spouse of the transaction *           
          * * that gave rise to the deduction."  Friedman v. Commissioner,            
          53 F.3d at 530.                                                             
               With respect to a taxpayer's "reason to know", courts tend             
          to use a test possessing both subjective and objective                      
          components:  whether a "'reasonably prudent taxpayer in * * *               
          [taxpayer's] position at the time she signed the return could be            
          expected to know that the return contained the substantial                  
          understatement.'"  Hayman v. Commissioner, 992 F.2d at 1261                 




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