- 44 -
construction. See Hesselink v. Commissioner, 97 T.C. 94, 99-100
(1991).
The majority concludes that the knowledge requirement of
section 6015(c) does not require the electing spouse to know that
the item on the return is incorrect, see majority op. pp. 19-20, and
points out that petitioner knew the amount of the unreported income.
See majority op. p. 23. In contrast, the putative innocent spouse
in Charlton did not know the amount of unreported income from his
then-wife’s business. This might be how the majority would
distinguish Charlton from the instant case; i.e., that knowledge of
an income-producing transaction or activity does not cause a
putative innocent spouse to fail to qualify for the separate
liability election unless the putative innocent spouse knew the
amount of income involved. If the majority is promulgating this
factual distinction as a new standard, it should so state.
PARR, GALE, and MARVEL, JJ., agree with this dissenting
opinion.
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