- 12 - Thus, we are faced with the same question under section 6015(c) that we addressed in Cheshire; namely, whether respondent has demonstrated4 that petitioner had “actual knowledge * * * of any item giving rise to a deficiency” within the meaning of section 6015(c)(3)(C). In Cheshire, we held that section 6015(c)(3)(C) does not require the Commissioner to show that the electing spouse had knowledge of the tax consequences arising from the item giving rise to the deficiency or that the item reported on the return was incorrect. Rather, “actual knowledge” for purposes of section 6015(c)(3)(C): is an actual and clear awareness (as opposed to reason to know) of the existence of an item which gives rise to the deficiency (or portion thereof). In the case of omitted income * * *, the electing spouse must have an actual and clear awareness of the omitted income. * * * [Cheshire v. Commissioner, supra at ___; fn. ref. omitted (slip op. at 19).] In the instant case, petitioner had an actual and clear awareness of the omitted income–-she knew when the transfer refund distribution was received and the amount of the distribution. Thus, despite the fact that petitioner was not aware of the tax consequences arising from the transfer refund distribution, or that her tax return was incorrect,5 under our 4 We note that in general under sec. 6015(c) the taxpayer has the burden of proof, see sec. 6015(c)(2), but for purposes of this provision, the Commissioner has the burden of proof, see id. 5 Petitioner and Mr. Browne gave conflicting testimony (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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