- 23 -
On the other hand, the IRS’s administrative record with respect
to the abuse factor is scant at best.
Because of the lack of sufficient evidence of abuse in the
record, as well as the Court’s concern that Mr. Lepordo is not
available to defend himself against the abuse allegations or to
otherwise verify them, the Court finds that the abuse factor is
neutral. See Rev. Proc. 2003-61, sec. 4.03(2)(b)(i) (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).
Additionally, the Court finds that because of the lack of
evidence of abuse in the record, this factor does not mitigate
petitioner’s knowledge or reason to know.
Mental or Physical Health
The IRS will take into consideration whether the electing
spouse was in poor mental or physical health on the date the
electing 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.
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