Luis A. Vasquez, Petitioner, and Wendy Houdeshell, n.k.a. Wendy Gray, Intervenor - Page 7

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          Cheshire v. Commissioner, 115 T.C. 183, 195 (2000)).  “In the               
          case of omitted income * * *, the electing spouse must have an              
          actual and clear awareness of the omitted income.”  Id.                     
               Respondent agrees that petitioner is entitled to relief                
          under section 6015(c).  Intervenor filed her notice of                      
          intervention for the purpose of opposing petitioner’s claim for             
          relief under section 6015.  If intervenor offers sufficient                 
          evidence that petitioner had “actual knowledge” of the early                
          retirement distribution, then petitioner should not be entitled             
          to relief under section 6015(c).                                            
               Intervenor’s testimony that petitioner had actual knowledge            
          about the early retirement distribution is not corroborated by              
          other testimony or evidence.  The record demonstrates that                  
          intervenor had sole control over the GM 401(k) account and                  
          petitioner had no access to the statements for their joint bank             
          account.  The record contains no facts which show error in                  
          respondent’s position, and the Court concludes that petitioner              
          did not have actual knowledge of the factual circumstances                  
          regarding the distribution and that petitioner is entitled to               
          relief from joint and several liability under section 6015(c).              
               Reviewed and adopted as the report of the Small Tax Case               
          Division.                                                                   

                                             Decision will be entered                 
                                        for petitioner.                               





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