Mary Ellen Lepordo - Page 24




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          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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