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Timing of request for relief.--Confusion currently
exists as to the appropriate point at which a request
for innocent spouse relief should be made by the
taxpayer and considered by the IRS. Some have read the
statute to prohibit consideration by the IRS of
requests for relief until after an assessment has been
made, i.e., after the examination has been concluded,
and if challenged, judicially determined. Others have
read the statute to permit claims for relief from
deficiencies to be made upon the filing of the return
before any preliminary determination as to whether a
deficiency exists or whether the return will be
examined. The consideration of innocent spouse relief
requires that the IRS focus on the particular items
causing a deficiency; until such items are identified,
the IRS cannot consider these claims. Congress did not
intend that taxpayers be prohibited from seeking
innocent spouse relief until after an assessment has
been made; Congress intended the proper time to raise
and have the IRS consider a claim to be at the same
point where a deficiency is being considered and
asserted by the IRS. This is the least disruptive for
both the taxpayer and the IRS since it allows both to
focus on the innocent spouse issue while also focusing
on the items that might cause a deficiency. It also
permits every issue, including the innocent spouse
issue, to be resolved in single administrative and
judicial process. The bill clarifies the intended time
by permitting the election under (b) and (c) to be made
at any point after a deficiency has been asserted by
the IRS. A deficiency is considered to have been
asserted by the IRS at the time the IRS states that
additional taxes may be owed. Most commonly, this
occurs during the Examination process. It does not
require an assessment to have been made, nor does it
require the exhaustion of administrative remedies in
order for a taxpayer to be permitted to request
innocent spouse relief. [H. Conf. Rept. 106-1004, at
386-387 (2001); emphasis added.]
For the foregoing reasons, I dissent.
WHALEN and FOLEY, JJ., agree with this dissenting opinion.
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