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84% of the total income for the year even though Motsko argues
that he never saw a penny from the lowboy sale.
The agent seems to have concluded that Motsko earned all
revenue coming from Evergreen Trucking and Manns earned
everything that come from the Hydraulics Center. This is
questionable--the couple seemed to divide the labor in both
businesses fairly equally. Even though we acknowledge that
Motsko may just be an employee of the Hydraulics Center instead
of a partner, the fact remains that the revenue agent attributed
all the income from the Hydraulics Center to Manns. Neither of
the parties provided us with evidence to rebut the revenue
agent’s conclusion. What we do know, however, is that at least
part of the taxes due can be attributed to the income-producing
activities of Motsko. Thus, this factor weighs against relief.
Payment responsibility: Motsko and Manns did not have a
final divorce decree when the case was tried, so this factor is
neutral.
Other Factors: Motsko also urges us to consider Manns’s
sole responsibility for the tax crimes stemming from their
returns as a positive factor. While we encourage all taxpayers
to avoid indictment, we also think doing so should be presumed
rather than rewarded as a positive factor in seeking innocent
spouse relief.8
8 In Ewing, we did state that failure to “participate in any
wrongdoing”--at least when that wrongdoing was concealed from the
(continued...)
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