Cimberly Catherine Clarke-Lewis - Page 24




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          (stating that the taxpayer had produced third-party records                 
          confirming her abuse allegations); Fox v. Commissioner, supra               
          (stating same).                                                             
               The Court finds that this factor is neutral.  See Rev. Proc.           
          2003-61, sec. 4.03(2)(b)(i), 2003-2 C.B. at 299 (stating that the           
          presence of abuse weighs in favor of relief while lack of abuse             
          does not weigh against relief); see also Magee v. Commissioner,             
          T.C. Memo. 2005-263 (stating that lack of abuse is a neutral                
          factor under Rev. Proc. 2003-61); cf. Butner v. Commissioner,               
          supra (stating same under Rev. Proc. 2000-15).                              
          Mental or Physical Health                                                   
               The IRS will take into consideration whether the requesting            
          spouse was in poor mental or physical health on the date the                
          requesting spouse signed the return or at the time relief was               
          requested.  See Rev. Proc. 2003-61, sec. 4.03(2)(b)(ii), 2003-2             
          C.B. at 299.                                                                
               There is no evidence in the record that petitioner’s mental            
          or physical health was poor; therefore, this is a neutral factor.           
          See id.; see also Magee v. Commissioner, supra.                             
          Conclusion:  Weight of the Factors                                          
               Although the decision is close, the Court concludes that the           
          Appeals officer did not act arbitrarily, capriciously, or without           
          sound basis in fact, nor is there anything “fundamentally wrong”            
          with the IRS’s determination.  See Johnson v. J.B. Hunt Transp.,            







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