- 55 -
of proof on this issue. See Rule 142(a).3 Additionally, I would
note the applicability of the 2-year rule of section 6511, which
is not excepted by section 6015(g)(1). See Washington v.
Commissioner, supra at 160-163. As the Court would require
additional evidence for resolution of this case, and as the
parties agreed to leave the record open, I would hold that this
case could no longer be submitted under Rule 122.
III. Additional Problems With the Majority Opinion
A. This Is a Section 6015 Case; Collection Is Not in Issue
The majority basically holds that disregarding community
property law, for purposes of section 6015, would create a
statutory exception to the rule that “State law defines ownership
interests in property for purposes of Federal tax collections
under section 6321.” Majority op. p. 9; see also majority op.
pp. 15, 17, 19. This is a section 6015 case, not a collection
(section 6330) case. As the majority states: “The issue for
decision is the amount of refund, if any, petitioner is entitled
to under section 6015(g).” Majority op. p. 2.
Collection is independent from the determination of whether
a taxpayer is an “innocent spouse” and the amount of the refund a
taxpayer is entitled to upon a finding that he/she is an innocent
3 Sec. 7491(a) is inapplicable to this case as respondent’s
examination of the 1982, 1983, and 1984 tax years began before
July 22, 1998. See Higbee v. Commissioner, 116 T.C. 438, 440
(2001).
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