Kathryn Cheshire - Page 40




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               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...)          


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