John A. and Donna L. Rowe - Page 22




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          activity for 3 out of the 4 years in issue.  Again, petitioner              
          bore the burden of proving the appropriate allocation, and our              
          finding that this item was allocable to Mr. Rowe was based in               
          large part on petitioner’s testimony that she did not know that             
          she was listed as a proprietor of the activity.  On the basis of            
          the facts known to him and the relevant law, we believe that                
          respondent was substantially justified in his position that half            
          of this item was allocable to petitioner.                                   
               In King v. Commissioner, supra, we decided for the first               
          time that the Commissioner must show that the electing spouse had           
          “actual knowledge of the factual circumstances which made the               
          item unallowable as a deduction” in order for the electing spouse           
          to be denied relief under section 6015(c) for an item (or portion           
          thereof) which is not allocable to her.  Id. at 204.  In that               
          case, we applied this standard where the Commissioner disallowed            
          deductions on the basis of the determination that a horse                   
          activity was not engaged in for profit within the meaning of                
          section 183.  We required that the Commissioner show that the               
          electing spouse knew or believed that the other spouse was not              
          engaged in the horse activity for profit.  Id. at 205.  King was            
          filed on April 10, 2001, after the trial was held in this case.             
               Although we disagreed with respondent’s argument that                  
          petitioner had actual knowledge under section 6015(c), we believe           
          that respondent had a reasonable basis in both law and fact for             






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