Kathryn Cheshire - Page 19




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          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.            





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