George C. Scrimshaw and Erna C. Scrimshaw - Page 13

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         Respondent objects, asserting that petitioner is precluded as a              
         matter of law from being able to qualify as an innocent spouse with          
         respect to the three adjustments in this case, i.e., the Investors           
         Mining Program 77-5, the "London Options" futures contracts, and the         
         Six Star Cablevision Management Corp. adjustments.                           
              In opposing petitioner's request to assert an innocent spouse           
         defense for the first time, respondent relies on Russo v.                    
         Commissioner, 98 T.C. 28, 31 (1992), in which we denied a taxpayer's         
         motion for leave to file an amendment to the petition to raise an            
         innocent spouse defense.  We therein concluded that such a belated           
         amendment would be inconsistent with justice.  Rule 41(a).                   
              We agree with respondent's position. Petitioner's innocent              
         spouse claim is clearly untimely.  See id.; Bernard v. Commissioner,         
         T.C. Memo. 1995-332.7  Nevertheless, we are reluctant to rest our            
         decision solely on the belatedness of the claim.  See Wilson v.              
         Commissioner, 500 F.2d 645 (2d Cir. 1974), revg. and remanding T.C.          
         Memo. 1973-92.  Accordingly, we shall discuss whether petitioner has         
         proven that she might prevail upon her innocent spouse claim with            
         respect to the adjustments determined in the notice of deficiency.           
              Spouses who file a joint income tax return generally are                
         jointly and severally liable for its accuracy and the tax due,               
         including any additional taxes, interest, or penalties determined            


               7    Petitioner's untimely late-hour assertion of innocent             
          spouse has many of the earmarks of a proceeding maintained by the           
          taxpayer primarily for delay.  See sec. 6673(a)(1).                         




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