Kathryn Cheshire - Page 41




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               The majority concludes that petitioner inquired in good faith          
          as to whether her return was correct, she was assured that it was           
          correct, and she had no obligation to inquire further.  See majority        
          op. at 26.  In explaining its holding that it was an abuse of               
          discretion for respondent not to grant equitable relief under               
          section 6015(f) as to petitioner’s liability for the section 6662(a)        
          accuracy-related penalty, the majority states:                              
               we are satisfied that at the time she signed the 1992 tax              
               return, petitioner believed that the portion of retirement             
               distribution proceeds used to pay off the mortgage on the              
               family residence would be nontaxable.  Further, we believe             
               that petitioner acted in good faith in reaching this                   
               erroneous conclusion.                                                  
                                   * * * * * * *                                      
               [Petitioner] asked Mr. Cheshire about the potential tax                
               ramifications of the retirement distributions, and in                  
               response, Mr. Cheshire assured petitioner that he had                  
               consulted with a certified public accountant and had been              
               advised that the payment of the outstanding mortgage on                
               the family residence and any amount rolled over into a                 
               qualified account reduced the taxable amount of the                    
               retirement distributions.  Mrs. Cheshire had no reason to              
               doubt the truthfulness of Mr. Cheshire’s statement, and in             
               fact believed him.  Under these circumstances, we do not               
               believe petitioner had an obligation to inquire further.               
          Majority op. at 25-26.  In short, the majority holds that petitioner        
          thought the reporting of the distributions on her tax return was            
          correct.  Thus, in holding for respondent, the majority disregards          


               4(...continued)                                                        
          “the electing spouse must have an actual and clear awareness of             
          the omitted income.”  See majority op. p. 19.  If sec.                      
          6015(c)(3)(C) is unambiguous, we need not create another                    
          standard; if it is ambiguous, legislative history provides the              
          standard; i.e., that relief is not available if the Commissioner            
          proves that the electing spouse had actual knowledge that any               
          item on a return is incorrect.                                              


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