Gwendolyn A. Ewing - Page 39




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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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