Estate of Robert J. Capehart, Deceased, Ingrid Capehart, Personal Reprensentative, and Ingrid Capehart - Page 15

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                    b.   Petitioner’s Computation                                     
                         i.   Separate Return Liability                               
               Petitioner asserts that her liability should be limited to             
          $2,134, the amount she would have paid on taxable income of                 
          $14,204 had she filed a separate return.  Petitioner’s theory               
          assumes that erroneous items cannot be allocated in a way that              
          would result in a spouse’s owing more tax than if separate                  
          returns had been filed.  Neither the statute nor the regulations            
          provide for such a limitation.  The statute and the regulations             
          allocate all of petitioner’s erroneous items to her except for              
          those items that provided a tax benefit to Mr. Capehart on the              
          joint return.  If petitioner’s liability were limited to $2,134,            
          then only $11,044 (not $14,204) of her erroneous items would be             
          allocated to her for purposes of section 6015(d)(1), computed as            
          follows:                                                                    
               deficiency allocated                                                   
               X = to petitioner ($2,134) x total erroneous items($42,565)            
               deficiency ($8,225)                                                    
          where X is the portion of the erroneous items allocable to                  
          petitioner.  Essentially, petitioner argues that Mr. Capehart               
          received a tax benefit on the joint return from $10,238.50 of               
          petitioner’s erroneous items.                                               
               Under petitioner’s theory, Mr. Capehart’s $37,967 taxable              
          income would have been offset by his erroneous items ($21,282.50)           
          plus $10,238.50 of petitioner’s erroneous items.  The $9,606 of             






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