Kathryn Cheshire - Page 39




                                        - 39 -                                        
          innocent spouse will not qualify for relief under section 6015(c)           
          if he or she had actual knowledge that any item on the return was           
          incorrect.  The conference report states that:                              
               if the IRS proves that the electing spouse had actual                  
               knowledge that any item on a return is incorrect, the                  
               election will not apply to the extent any deficiency is                
               attributable to such item. [Emphasis added.]                           
          H. Conf. Rept. 105-599, at 253 (1998).  Thus, the legislative               
          history unequivocally shows that Congress intended to require the           
          Commissioner to prove that the putative innocent spouse knew that           
          his or her tax return was incorrect.3                                       
               The passage from the legislative history on which the majority         
          relies relates to the allocation of items between the two spouses           
          when one qualifies for the separate liability election.  See                
          majority op. at 21.  It does not describe the knowledge requirement,        
          interpretation of which is at issue here, and thus does not address         
          this issue.  Further, statutory language in the allocation rule             
          undermines the majority’s position.  Section 6015(d)(3)(A) provides         
          that:                                                                       
                    (A) In general.–Except as provided in paragraphs (4)              
               and (5), any item giving rise to a deficiency on a joint               
               return shall be allocated to individuals filing the                    


               3  Contrary to the suggestion that this language might                 
          merely be an example of a situation where relief is not                     
          warranted, the above-quoted passage from the conference report              
          and the identical language from the Finance Committee report are            
          explanations of the statutory rule, not examples.  The Finance              
          Committee report and the conference report have a specific way to           
          present examples.  First, they state a general point; then they             
          state “For example, * * *” to illustrate the point.  This pattern           
          is repeated seven times in the Finance Committee’s explanation of           
          sec. 6015 and seven times in the conference report’s explanation            
          of sec. 6015.                                                               


Page:  Previous  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  Next

Last modified: May 25, 2011