Kathryn Cheshire - Page 29




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               THORNTON, J., concurring:  No relief is available under                
          section 6015(c)(3)(C) if the Commissioner shows that the spouse             
          seeking relief had “actual knowledge * * * of any item giving rise          
          to a deficiency (or portion thereof)”.  Majority op. p. 17.  The            
          majority opinion appropriately construes this statutory language to         
          require, in the case of omitted income, “actual and clear awareness         
          of the omitted income.”  Thus, I believe, the majority opinion              
          inherently rejects respondent’s argument that actual knowledge of           
          an “item” means actual knowledge merely of the event or transaction         
          giving rise to the deficiency.  This result comports with the               
          ameliorative purposes of section 6015(c).  It is also consistent            
          with the statutory framework.  In particular, if a spouse qualifies         
          under section 6015(c), the relief provided under section 6015(d) is         
          an allocation between spouses of the “items” giving rise to the             
          deficiency.  In this context, “item” clearly signifies the item of          
          omitted income, not the underlying event or transaction.                    
               The majority opinion harmonizes with the legislative history.          
          The relevant Senate and conference reports state that section               
          6015(c) provides no relief if the Commissioner proves that the              
          spouse seeking relief had “actual knowledge that an item on a               
          return is incorrect.”  What does it mean for an “item on a return”          
          (as opposed to the tax treatment of such an item) to be                     
          “incorrect”?  In the context of omitted income, and in the light of         
          the section 61 provisions defining gross income by reference to             






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