- 22 - 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 forPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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