- 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
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