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legally separated or living apart from, the individual with whom
the requesting spouse filed the joint return (the nonrequesting
spouse), section 6015(c)(3)(A)(i)(I). Petitioner satisfies those
requirements. Relief is available to the requesting spouse only
for that portion of the deficiency properly allocable to the
nonrequesting spouse. Sec. 6015(c)(1), (d). Respondent concedes
that the deficiency is entirely allocable to Jorgensen.
A requesting spouse meeting the above requirements may still
be denied relief under section 6015(c) if the Commissioner can
demonstrate1 that, at the time the requesting spouse signed the
joint return, she had actual knowledge of any item giving rise to
a deficiency (or portion thereof) that is not allocable to her.
Sec. 6015(c)(3)(C). “Actual knowledge” for purposes of section
6015(c)(3)(C) is the actual and clear awareness of the item, as
distinguished from mere reason to know of the item. Cheshire v.
Commissioner, 282 F.3d 326, 337 n.26 (5th Cir. 2002), affg. 115
T.C. 183, 195 (2000); sec. 1.6015-3(c)(2)(iii), Income Tax Regs.2
The mere fact that information is available to a taxpayer
concerning the source of income is insufficient to show actual
knowledge of the item of omitted income. Charlton v.
1Respondent has both the burden of producing evidence and
the risk of nonpersuasion on the issue of actual knowledge. Sec.
1.6015-3(c)(2)(ii), Income Tax Regs.
2The regulation is applicable for elections or requests for
relief filed on or after July 18, 2002. Sec. 1.6015-9, Income
Tax Regs.
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Last modified: May 25, 2011