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requesting spouse must timely file an election for relief, sec.
6015(c)(3)(B); and, at the time the election is filed, she must
no longer be married to, or must be legally separated or living
apart from, the individual with whom the requesting spouse filed
the joint return (the nonrequesting spouse), sec.
6015(c)(3)(A)(i). Petitioner satisfies those requirements.
Additionally, 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 Mr. Spruill, and we
so find.
B. Actual Knowledge
A requesting spouse who meets the above requirements may yet
be denied relief under section 6015(c) if the Commissioner can
demonstrate 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). Both this court and the Court of Appeals for
the Fifth Circuit, the Court of Appeals to which an appeal in
this case would lie, barring the parties’ stipulation to the
contrary, see sec. 7482(b), have defined culpable knowledge for
purposes of sec. 6015(c)(3)(C) as 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
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