David Bruce Billings - Page 12




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          that the knowledge factor weighed in David’s favor.  We thus need           
          to look elsewhere to decide at which time the Commissioner should           
          have measured David’s knowledge.                                            
               The first place we look is at a case where a wife who                  
          requested relief didn’t know about an IRA distribution that her             
          husband failed to report when she signed the original return.               
          She learned about the distribution only after her husband’s                 
          death, and then filed an amended return that corrected the                  
          omission.  In that case, the Commissioner also measured her                 
          knowledge at the time she signed the amended return.  We found              
          his determination to be an abuse of discretion because:                     
                    It is unpersuasive to argue, as does                              
                    respondent, that petitioner’s voluntary                           
                    filing of an amended 1996 return and her                          
                    attendant payment of the delinquent taxes                         
                    attributable to the omission of income                            
                    from the original 1996 return militate                            
                    against equitable relief simply because                           
                    she had to have known of the omission                             
                    before she filed the amended return and                           
                    made the payment.                                                 
          Rosenthal v. Commissioner, T.C. Memo. 2004-89.                              
               We acknowledge that in Rosenthal the requesting spouse paid            
          the taxes she owed on the omitted income when she filed her                 
          amended return, but we find that this fact does not distinguish             
          David’s case--in both cases the innocent spouses were ignorant of           
          the key facts at the time they signed the original return.                  
               A second place we can look to for help is in section                   
          6015(b).  That section gives relief when a spouse is reasonably             






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