Craig A. Penfield - Page 8




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               (f) Equitable Relief.--Under procedures prescribed by the              
          Secretary, if--                                                             
                    (1) taking into account all the facts and                         
               circumstances, it is inequitable to hold the individual                
               liable for any unpaid tax or any deficiency (or any portion            
               of either); and                                                        
                    (2) relief is not available to such individual under              
               subsection (b) or (c),                                                 
               the Secretary may relieve such individual of such liability.           
               Except as otherwise provided in section 6015, petitioner               
          bears the burden of proof.  Rule 142(a).  Although section                  
          7491(a) may operate in specified circumstances to place the                 
          burden on the Commissioner, subsection (a)(3) of that section               
          provides that the burden-shifting does not apply “to any issue if           
          any other provision of this title provides for a specific burden            
          of proof with respect to such issue.”  Section 6015(b)(1)(C)                
          expressly requires the spouse electing relief to establish that             
          he or she did not know or have reason to know of the                        
          understatement.  Section 6015(c)(2) and (c)(3)(C) explicitly                
          place the burden of proof on respondent to establish that the               
          requesting spouse had knowledge of the item giving rise to the              
          deficiency.                                                                 
               We point out at this juncture that in deciding whether                 
          petitioner has carried his burden of proof, witness credibility             
          is an important consideration.  See Ishizaki v. Commissioner,               
          T.C. Memo. 2001-318.  We are not required to accept petitioner’s            





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