Eleanor Simon - Page 24

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               Examiner based her determination on the rationale that                 
               Petitioner “should have known something was going on”,                 
               referring only to the liability itself. * * * there is                 
               no evidence that Petitioner had actual knowledge of the                
               underpayment.                                                          
                    * * * it is not reasonable for Petitioner to have                 
               known that the tax would not be paid.  All of the                      
               Petitioner’s relevant evidence indicates that Peti-                    
               tioner never even inquired about the tax prior to                      
               receiving Respondent’s notice of unpaid liability.                     
               Further, Respondent has produced no evidence that                      
               Petitioner inquired about the tax.                                     
                    Knowledge of the liability, whether actual or                     
               constructive, is not equal to knowledge of whether                     
               Petitioner knew or should have known whether the tax                   
               would be paid.  It is not reasonable for Petitioner to                 
               inquire about payment of an unknown underpayment if                    
               Petitioner did not actually know about the underpayment                
               itself.                                                                
                  *       *       *       *       *       *       *                   
                    The facts in this case are similar to those in                    
               Wiest v. Commissioner, T.C. Memo 2003-91.  In Wiest,                   
               * * * As to equitable relief under �6015(f), the deter-                
               mination letter provided that “underpayment was evident                
               at the signing of the joint return.  The taxpayer would                
               have had knowledge/reason to know of the underpayment                  
               at the time of signing the tax return.” * * * The Court                
               held [in Wiest] that Respondent abused his discretion                  
               in denying relief under �6015(f) with respect to an                    
               amount of tax reported on petitioner’s joint return but                
               not paid.  [Reproduced literally.]                                     
               Respondent argues that the knowledge or reason to know                 
          positive factor is not present in the instant case.  In support             
          of that argument, respondent asserts on brief:                              
               Despite the fact that the text “AMOUNT YOU OWE                         
               [$]12443” was an inch above petitioner’s signature on                  
               the [1998] return * * *, she claimed ignorance that any                
               tax was owed.  If petitioner was unaware that tax was                  
               due, she had a duty to inquire whether tax was owed.                   
               * * *                                                                  





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