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burden of proof * * * but for purposes of this provision, the
Commissioner has the burden of proof”); Wiksell v. Commissioner,
T.C. Memo. 1999-32 (“section 6015(c)(3)(C) places the burden to
establish actual knowledge on respondent”), affd. without
published opinion 215 F.3d 1335 (9th Cir. 2000).2
In the legislative history of section 6015(c), it is made
explicitly clear that a shift of the “burden of proof” to
respondent with regard to the actual knowledge element of section
6015(c)(3)(C) is intended, but no mention is made in the
legislative history as to what quantity or level of proof
respondent should be required to satisfy. See H. Rept. 105-364
(Part I), at 31 (1997), 1998-3 C.B. 373, 403 (“The bill contains
a number of provisions designed to strengthen the rights of
taxpayers in their dealings with the Internal Revenue Service.
Among the more significant of these provisions are modifying the
burden of proof”); H. Conf. Rept. 105-599, supra at 253, 1998-3
C.B. at 1007 (“if the IRS proves that the electing spouse had
actual knowledge that an item on a return is incorrect, the
2 Further, in a recent opinion by the Court of Appeals for the
Fourth Circuit, language is used that could be read to suggest
that the burden of proof with regard to the actual knowledge
element of sec. 6015(c) remains on the electing spouse. See
Grossman v. Commissioner, 182 F.3d 275, 279 (4th Cir. 1999) (“In
order to obtain the benefit of that provision, sec. 6015(c), an
individual must demonstrate inter alia that he had no ‘actual
knowledge’”), affg. T.C. Memo. 1996-452.
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