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1005, 1008, requires an affirmative election by the taxpayer,
sec. 6015(a)(1), and the presence of a deficiency, e.g., sec.
6015(b)(1)(B) (joint return must contain an “understatement of
tax”); sec. 6015(b)(1)(D) (factfinder must conclude as a
prerequisite to modified innocent spouse relief that it is
“inequitable to hold the other [petitioning spouse] individual
liable for the deficiency in tax for such taxable year
attributable to such understatement”). Second, section 6015(c)
allows certain individuals to elect to limit their personal
liability to the amount that was “properly allocable” to them.
Sec. 6015(c)(1)(A). In order to qualify for this second type of
relief, which was not available under former section 6013(e) and
to which the conferees referred as the “separate liability
election”, H. Conf. Rept. 105-599, supra at 251, 1998-3 C.B. at
1005, the taxpayers who filed the joint return must be no longer
married, or be legally separated, or have been living apart for a
3(...continued)
failure to file a federal income tax return for the taxable year
1955 when it was due.” Id. at 862, 864. This Court and the
Court of Appeals for the Sixth Circuit later repeated the term
while passing on the joint liability of a taxpayer who had filed
a joint return with her spouse. E.g., Huelsman v. Commissioner,
416 F.2d 477, 479 (6th Cir. 1969), remanding T.C. Memo. 1968-95;
Wenker v. Commissioner, T.C. Memo. 1966-240. The term also
appears in the legislative history accompanying the enactment of
former sec. 6013(e), S. Rept. 91-1537 (1970), 1971-1 C.B. 606,
and many subsequent court opinions discussing the former section,
e.g., United States v. Mitchell, 403 U.S. 190, 206 (1971);
Feldman v. Commissioner, 20 F.3d 1128 (11th Cir. 1994), affg.
T.C. Memo. 1993-17; Kroh v. Commissioner, 98 T.C. 383 (1992)
(Court reviewed).
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