- 19 - to the deficiency or that the item reported on the return is incorrect. Rather, the statute mandates only a showing that the electing spouse actually knew of the item on the return that gave rise to the deficiency (or portion thereof). See Wiksell v. Commissioner, 215 F.3d 1335 (9th Cir. 2000) (“the actual knowledge inquiry in section 6015(c)(3)(C) focuses on whether the taxpayer had knowledge ‘of any item giving rise to a deficiency’, not on the tax deficiency itself”; Court of Appeals held that spouse demonstrated actual knowledge of certain tax items by questioning her spouse about them), affg. without published opinion T.C. Memo. 1999-32. Here, when petitioner signed the joint return, she was aware of the amount, the source, and the date of receipt of the retirement distribution and interest. She was, however, under a misapprehension as to the taxable amount of the retirement distribution. We believe the knowledge standard for purposes of section 6015(c)(3)(C) is an actual and clear awareness (as opposed to reason to know) of the existence of an item which gives rise to the deficiency (or portion thereof). In the case of omitted income (such as the situation involved herein), the electing spouse must have an actual and clear awareness of the omitted income.6 Section 6015(c)(3)(C) does not require actual knowledge on the part 6 We leave to another day the manner in which the actual knowledge standard will be applied in erroneous deduction cases.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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