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respondent demonstrates that petitioner, at the time of signing
the joint return, had actual knowledge of any item giving rise to
a deficiency (or portion thereof) that amount will not qualify
for relief from joint and several liability. See sec.
6015(c)(3)(C); Cheshire v. Commissioner, 115 T.C. 183, 193
(2000), affd. 282 F.3d 326 (5th Cir. 2002). An electing spouse
may have the requisite “knowledge” even though he did not know
that there would be tax consequences arising from the item or
that the item was incorrectly reported. See Cheshire v.
Commissioner, supra at 194.
The record reflects that petitioner filed a joint return
with Ms. Morrison, made a timely election, and was not married to
Ms. Morrison at the time of the election. The dispute at issue
is whether petitioner had actual knowledge, at the time of
signing the joint return, of the omitted Social Security income.
Respondent has the burden of proving, by a preponderance of the
evidence, whether petitioner had actual knowledge of the omitted
income. See Culver v. Commissioner 116 T.C. 189, 196 (2001).
The knowledge standard for purposes of section 6015(c)(3)(C) is
“an actual and clear awareness (as opposed to reason to know) of
the existence of an item which gives rise to the deficiency (or
portion thereof).” Cheshire v. Commissioner, supra at 195. In
omitted income cases, the electing spouse “must have an actual
and clear awareness of the omitted income.” Id. at 200.
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