- 40 - return in the same manner as it would have been allocated if the individuals had filed separate returns for the taxable year. [Emphasis added.] The text of section 6015(d)(3)(A) implies that an “item giving rise to a deficiency” is an item on the return rather than a underlying transaction or activity because an amount on a return can be allocated, i.e., split, but an underlying transaction or activity cannot. Thus, the legislative history accompanying enactment of section 6015(c) clearly shows that Congress intended the knowledge requirement to mean knowledge that the return is incorrect, not knowledge that there was an income-producing activity or transaction. See S. Rept. 105-174, at 59 (1998), H. Conf. Rept. 105-599, at 253 (1998). The majority fails to apply that standard. See majority op. at 20. The majority’s reliance on the TEFRA partnership rules (sections 6231 and 6245) to construe “item” is not persuasive because those sections do not speak to the interpretative issue we face under section 6015(c)(3)(C). III. The Majority Disregards the Requirement in the Conference Report That the Commissioner Prove That the Putative Innocent Spouse Knew That an Item on the Return Was “Incorrect” As stated above, the majority holds that, in omitted income cases, section 6015(c)(3)(C) does not require actual knowledge on the part of the electing spouse as to whether the entry on the return is or is not correct. See majority op. at 20.4 4 The majority also suggests another standard; i.e., that (continued...)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