Barbara A. Owen - Page 23

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          F.3d 1136 (9th Cir. 2005); Mekulsia v. Commissioner, T.C. Memo.             
          2003-138, affd. 389 F.3d 601 (6th Cir. 2004); Durham Farms #1,              
          J.V. v. Commissioner, T.C. Memo. 2000-159, affd. 59 Fed. Appx.              
          952 (9th Cir. 2003); Shorthorn Genetic Engg. 1982-2, Ltd. v.                
          Commissioner, T.C. Memo. 1996-515; Bales v. Commissioner, T.C.              
          Memo. 1989-568.  Moreover, it was a matter of public record when            
          respondent adopted his position that Mr. Hoyt had overstated the            
          number and value of cattle sold to the partnerships.11  See,                
          e.g., Mora v. Commissioner, supra at 292.                                   
               In King v. Commissioner, supra at 204, we held that “the               
          proper application of the actual knowledge standard in section              
          6015(c)(3)(C), in the context of a disallowed deduction, requires           
          respondent to prove that petitioner had actual knowledge of the             
          factual circumstances which made the item unallowable as a                  
          deduction.”  In other words, respondent had to prove that                   
          petitioner knew the Hoyt organization had an insufficient number            
          of cattle to sustain the partnership deductions claimed on the              
          joint return and knowingly claimed improper deductions.  Nothing            
          in the record indicates, however, that respondent made any                  
          reasonable effort to identify the grounds for the disallowance of           
          the Hoyt partnership losses and credits petitioner and Mr. Owen             


               11By Sept. 9, 2002, Mr. Hoyt had been indicted, convicted,             
          and sentenced for his fraudulent activities with respect to the             
          Hoyt partnerships.                                                          






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