                      115 T.C. No. 15



                UNITED STATES TAX COURT



            KATHRYN CHESHIRE, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 3483-99.                     Filed August 30, 2000.



     P and H filed a joint 1992 Federal income tax return
on which a portion of retirement distribution proceeds H
received and interest received from a joint bank account
were omitted from gross income. Although P acknowledges
that when she signed the joint return she had actual
knowledge of the omitted retirement distribution
proceeds, she posits that, relying on H’s false
statements, she had reason to believe that the omitted
retirement distribution proceeds were not taxable and
that she should be entitled to relief under sec. 6015(b),
(c), and/or (f), I.R.C., with respect thereto. Further,
P seeks innocent spouse relief with respect to the sec.
6662(a), I.R.C., accuracy-related penalty.

     1.   Held: P is not entitled to innocent spouse
relief with respect to the omitted items of income.
                               - 2 -

          2. Held, further, knowledge of the “item giving
     rise to a deficiency” for purposes of sec. 6015(c)(3)(C),
     I.R.C., does not mean knowledge of the tax consequences
     of the item or that the entry on the return is incorrect.

          3.   Held, further, after taking into account all
     the facts and circumstances presented in this case, R’s
     denial of equitable relief to P under sec. 6015(f),
     I.R.C., as it relates to the sec. 6662(a), I.R.C.,
     penalty applicable to the omitted retirement distribution
     proceeds, constitutes an abuse of his discretion.



     John Edward Leeper, for petitioner.

     Sheila R. Pattison and Gerald L. Brantley, for respondent.



     JACOBS, Judge:   Respondent determined a $66,069 deficiency in

Kathryn and David Cheshire’s 1992 Federal income tax, a $16,518

section 6651(a)(1) addition to tax, and a $13,214 section 6662(a)

accuracy-related penalty. Only Kathryn Cheshire has contested this

determination; she does so claiming innocent spouse relief under

section 6015(b), (c), and/or (f).

     After concessions by respondent, see infra, the issue to be

resolved is whether Mrs. Cheshire is entitled to innocent spouse

relief with respect to:   (1) The taxation of an omitted portion of

the distributions Mr. Cheshire received upon his retirement from

Southwestern Bell Telephone Co., and omitted interest income from

a joint bank account, and (2) the section 6662(a) accuracy-related

penalty.
                                   - 3 -

     All section references are to the Internal Revenue Code as in

effect for the year under consideration.       All Rule references are

to the Tax Court Rules of Practice and Procedure.             All dollar

amounts are rounded.

                            FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.          The

stipulation of facts and the attached exhibits are incorporated

herein by this reference.

Background

     Petitioner resided in Cedar Creek, Texas, at the time she

filed her petition.

     Petitioner and Mr. Cheshire were married on June 20, 1970;

they permanently separated on July 13, 1993, and were divorced on

December     5,   1994.    For   1992,   petitioner   and   Mr.   Cheshire

(collectively, the Cheshires) filed a joint Federal income tax

return.

     Petitioner received a bachelor of science degree in secondary

education.        Upon graduating from college in 1970, she worked

approximately 3 years as an elementary school teacher, then stayed

home for approximately 10 years (1974-84) in order to raise her 2

children.    She returned to teaching in 1984.

     In September 1985, the Cheshires purchased property located at

24A Simpson Avenue, Cedar Creek, Texas, for use as the family
                                  - 4 -

residence.   The    Cheshires    borrowed    $99,000     to    purchase      the

property.

David Cheshire’s Retirement and Compensation Package

     Mr. Cheshire took early retirement from Southwestern Bell

Telephone Co. (Southwestern Bell), effective January 1, 1992.                 As

a result, Mr. Cheshire received the following distributions (the

retirement distributions) in 1992:

                                                              Amount

Nations Bank of Texas, Trustee, for
  “SBNCNPP EMP LUMP SUM”                                  $199,771
Southwestern Bell LESOP for salaried employees               5,919
Southwestern Bell savings plan for salaried
  employees                                                    23,263
Southwestern Bell ESOP                                            971

     Total                                                    229,924

Of the $229,924, $42,183 was rolled over into a qualified account.

     On January 31, 1992, Mr. Cheshire deposited $184,377 of the

retirement distributions into an account (account No. 9633-09) in

the name of “David D. Cheshire and Kathy Cheshire” at the Austin

Telco Federal Credit Union (the Austin Telco account).1             In 1992,

the funds in this account earned $1,168 in interest.

     Petitioner    was   aware   of   Mr.   Cheshire’s    receipt       of   the

retirement distributions and the amount thereof, as well as the

interest earned on the Austin Telco account.



     1
          An additional $29,786 was deposited into this account
between Jan. 29 and Feb. 4, 1992. The record does not reveal the
source of these funds.
                                - 5 -

The Cheshires’ Use of the Retirement Distributions

     The Cheshires made several large disbursements out of the

Austin Telco account in 1992.   Specifically, $99,425 was withdrawn

to pay off the mortgage on the family residence, and $20,189 was

withdrawn to purchase a 1992 Ford Explorer.

     The retirement distributions were also used to pay family

expenses, provide startup capital for Mr. Cheshire’s newly formed

sole proprietorship, Academic Resources Management Systems (ARMS),

and for investments.2   In addition, the retirement distributions

were used to satisfy loans taken out to acquire a family truck and

a car for one of their children as well as to open a college bank

account for their daughter. The Cheshires retained joint ownership

of this account.

     On September 22, 1992, Mr. Cheshire opened a second account

(account No. 25239-87) at the Austin Telco Federal Credit Union and

transferred the remaining proceeds of the retirement distributions

from account No. 9633-09 into this account.     On November 12, 1992,

Mr. Cheshire wrote a check from this second account in the amount

of $6,300 payable to “A.R.M.S.”; this amount was subsequently

deposited into ARMS’ bank account.      In 1992, the funds in account

No. 25239-87 earned $26 in interest.




     2
          On Apr. 24 and May 19, 1992, Mr. Cheshire deposited
$40,000 and $5,301, respectively, into a brokerage account at
Edward D. Jones & Co.
                                   - 6 -

Petitioner’s Separation and Divorce

     Mr. Cheshire was arrested several times for driving while

intoxicated (DWI).       In June 1993, he was involved in an alcohol-

related     automobile    accident.      Approximately    a    month     later,

petitioner and Mr. Cheshire permanently separated; they divorced 17

months after their separation.

     Pursuant to a divorce decree, Mr. Cheshire transferred to

petitioner his interest in the property constituting the family

residence and title to the 1992 Ford Explorer.                At the time of

transfer,    the   family    residence    and   the   Ford    Explorer    were

unencumbered.

The Cheshires’ 1992 Federal Income Tax Return

     Mr. Cheshire prepared and filed his and Mrs. Cheshire’s joint

income tax returns.         Mr. Cheshire prepared the Cheshires’ 1992

joint Federal income tax return (the 1992 return) in March 1993,

prior to beginning a jail sentence for a DWI conviction.               Before

signing the return, petitioner questioned her husband about the

potential tax ramifications of the retirement distributions.               Mr.

Cheshire falsely told petitioner he had consulted with a local

certified public accountant, J.D. Mican (Mr. Mican), and had been

advised that proceeds used to pay off the mortgage on their home

would reduce the taxable amount of the retirement distributions.

Accepting her husband’s answer, petitioner did not inquire further

and signed the 1992 return on March 14, 1993.            Petitioner assumed
                                 - 7 -

that the 1992 return would be timely filed.             On the 1992 return,

the Cheshires reported that they had received a $199,771 retirement

distribution and that $56,150 of that amount constituted taxable

income.     In addition, they reported $477 in interest income, as

well as a $12,349 loss on their Schedule C, Profit or Loss From

Business.

     In August 1994, petitioner received a letter from the Internal

Revenue   Service   (IRS)   stating   that   it   had    not   received   the

Cheshires’ 1992 return.       In searching for a copy of the 1992

return, petitioner discovered in a desk drawer the original 1992

return as well as a check for the amount of tax shown to be owing

($23.86).    Petitioner immediately contacted Mr. Mican; he advised

her to file the 1992 return and enclose payment for the tax

liability reflected on the return as soon as possible.           Petitioner

filed the 1992 return along with the remittance on August 15, 1994.

     In early October 1994, petitioner received notification from

the IRS that $8,502 in estimated tax payments claimed on the

Cheshires’ 1992 return had not been paid.         Despite Mr. Cheshire’s

reassurance that he had made the estimated tax payments, petitioner

discovered that the payments in fact had not been made.            Upon the

advice of Mr. Mican, petitioner paid the estimated tax using

borrowed funds.
                                    - 8 -

Notice of Deficiency

       Respondent   determined     that     $187,741       of     the    retirement

distributions    ($229,924     total    distributions        less       the   $42,183

rollover)   constituted      taxable   income,   and       thus    the    Cheshires

understated the taxable amount of the retirement distributions by

$131,591 ($187,741 - $56,150).         Respondent further determined that

the Cheshires understated (1) their interest income by $717, (2)

their dividend      income   and   capital   gains     by    $132       and   $1,889,

respectively, and (3) their self-employment tax by $353.                           In

addition, respondent disallowed $14,843 in Schedule C expenses. As

a result of these determinations, as well as the late filing of the

1992   return,   respondent    determined     that     a    section      6651(a)(1)

addition to tax and a section 6662(a) accuracy-related penalty

should be imposed.

Respondent’s Concessions

       Prior to trial, respondent conceded that petitioner qualified

for innocent spouse relief with respect to the following:

             Item                                                         Amount

       Schedule C expenses                                               $14,843
       Self-employment taxes                                                 353
       Capital gains                                                       1,889
       Dividend income                                                       132
       Interest income                                                        26
       Southwestern Bell LESOP distribution                                5,919
       Southwestern Bell savings plan distribution                        23,263
       Southwestern Bell ESOP distribution                                   971
       Section 6651(a)(1) addition to tax                                 16,518
                                      - 9 -

                                     OPINION

       As a general proposition, if a joint return is filed by a

husband and wife, liability with respect to any tax shown on the

return or found to be owing is joint and several.                    See sec.

6013(d)(3).     In    1971,      Congress   enacted   section   6013(e),     the

predecessor to section 6015, in order to correct perceived grave

injustices often resulting from the imposition of joint and several

liability.    See S. Rept. 91-1537, at 2 (1970), 1971-1 C.B. 606,

607; see also Act of Jan. 12, 1971, Pub. L. 91-679, sec. 1, 84

Stat. 2063 (enacted sec. 6013(e)), as amended by the Deficit

Reduction Act of 1984, Pub. L. 98-369, sec. 424, 98 Stat. 494, 801-

803.

       As amended,3 section 6013(e) provided that a spouse could be

relieved of tax liability if the spouse proved:           (1) A joint income

tax return was filed; (2) the return contained a substantial

understatement of tax attributable to grossly erroneous items of

the other spouse; (3) in signing the return, the spouse seeking

relief did not know, and had no reason to know, of the substantial

understatement;      and   (4)    under   the   circumstances   it   would   be

inequitable to hold the spouse seeking relief liable for the



       3
          Initially, sec. 6013(e) provided relief only in cases
involving an omission of income. In 1984, the scope of sec.
6013(e) was expanded to provide relief in erroneous deduction
cases. See Deficit Reduction Act of 1984, Pub. L. 98-369, sec.
424, 98 Stat. 494, 801-803; H. Conf. Rept. 98-861, at 1119
(1984), 1984-3 C.B. (Vol. 2) 1, 373.
                                  - 10 -

substantial understatement.        The relief granted under section

6013(e) is commonly referred to as innocent spouse relief.

The Enactment of Section 6015

      For many taxpayers, relief under section 6013(e) was difficult

to   obtain.    In   order   to   make   innocent   spouse   relief   more

accessible, Congress repealed section 6013(e) and enacted a new

innocent spouse provision (section 6015) in 1998 as part of the

Internal Revenue Service Restructuring and Reform Act of 1998 (RRA

1998), Pub. L. 105-206, sec. 3201(a), 112 Stat. 734.         See H. Conf.

Rept. 105-599, at 249 (1998). The newly enacted statute provided

three avenues of relief from joint and several liability:              (1)

Section 6015(b)(1) (which is similar to former section 6013(e))

allows a spouse to escape completely joint and several liability;

(2) section 6015(b)(2) and (c) allow a spouse to elect limited

liability through relief from a portion of the understatement or

deficiency; and (3) section 6015(f) confers upon the Secretary

discretion to grant equitable relief in situations where relief is

unavailable under section 6015(b) or (c).       Section 6015 generally

applies to any liability for tax arising after July 22, 1998, and

any liability for tax arising on or before July 22, 1998, that

remains unpaid as of such date.     See H. Conf. Rept. 105-599, at 251

(1998).
                             - 11 -

Applicable Statutory Provisions

     Section 6015(b) provides:

          SEC. 6015(b). Procedures for Relief From Liability
     Applicable to All Joint Filers.--

               (1) In general.--Under procedures prescribed
          by the Secretary, if–-

                    (A) a joint return has been
               made for a taxable year;

                   (B) on such return there is an
              understatement of tax attributable to
              erroneous items of 1 individual filing
              the joint return;

                   (C) the other individual   filing the
              joint return establishes that   in signing
              the return he or she did not     know, and
              had no reason to know, that      there was
              such understatement;

                   (D) taking into account all the
              facts    and   circumstances,    it    is
              inequitable to hold the other individual
              liable for the deficiency in tax for such
              taxable   year   attributable   to   such
              understatement; and

                   (E) the other individual elects (in
              such form as the Secretary may prescribe)
              the benefits of this subsection not later
              than the date which is 2 years after the
              date the Secretary has begun collection
              activities with respect to the individual
              making the election,

         then the other individual shall be relieved of
         liability   for   tax   (including   interest,
         penalties, and other amounts) for such taxable
         year   to  the   extent   such  liability   is
         attributable to such understatement.

              (2) Apportionment of relief.–-If an
         individual who, but for paragraph (1)(C),
         would be relieved of liability under paragraph
                         - 12 -

     (1), establishes that in signing the return
     such individual did not know, and had no
     reason   to   know,   the  extent   of   such
     understatement, then such individual shall be
     relieved of liability for tax (including
     interest, penalties, and other amounts) for
     such taxable year to the extent that such
     liability is attributable to the portion of
     such understatement of which such individual
     did not know and had no reason to know.

Section 6015(c) provides in relevant part:

         SEC.   6015(c).  Procedures  to   Limit
    Liability For Taxpayers No Longer Married or
    Taxpayers Legally Separated or Not Living
    Together.--

              (1) In    general.--Except   as
         provided in this subsection, if an
         individual who has made a joint
         return for any taxable year elects
         the application of this subsection,
         the individual’s liability for any
         deficiency which is assessed with
         respect to the return shall not
         exceed   the    portion   of    such
         deficiency properly allocable to the
         individual under subsection (d).

         *     *     *      *     *     *        *

              (3)(C) Election not valid with
         respect to certain deficiencies.–-If
         the Secretary demonstrates that an
         individual making an election under
         this    subsection     had     actual
         knowledge,    at   the   time    such
         individual signed the return, of any
         item giving rise to a deficiency (or
         portion   thereof)   which   is   not
         allocable to such individual under
         subsection (d), such election shall
         not apply to such deficiency (or
                               - 13 -

               portion). This subparagraph shall
               not apply where the individual with
               actual knowledge establishes that
               such individual signed the return
               under duress.

     Section 6015(d) specifies how an allocation under section

6015(c) is to be made, providing in relevant part:

          SEC.   6015(d).  Allocation   of   Deficiency.--For
     purposes of [section 6015(c)]--

              (1) In general.--The portion of any
         deficiency on a joint return allocated to an
         individual shall be the amount which bears the
         same ratio to such deficiency as the net
         amount of items taken into account in
         computing the deficiency and allocable to the
         individual * * * bears to the net amount of
         all items taken into account in computing the
         deficiency.

               *     *     *       *    *     *      *

              (3) Allocation Of Items Giving Rise To
         The Deficiency.--For purpose of * * * [section
         6015(c)]--

                   (A)    In general.--Except as
              provided in paragraphs (4) and (5),
              any item giving rise to a deficiency
              on a joint return shall be allocated
              to individuals filing the return in
              the same manner as it would have
              been allocated if the individuals
              had filed separate returns for the
              taxable year.

                   (B) Exception     where   other
              spouse    benefits.--Under     rules
              prescribed by the Secretary, an item
              otherwise allocable to an individual
              under subparagraph (A) shall be
              allocated to the other individual
                                  - 14 -

                 filing the joint return to the
                 extent the item gave rise to a tax
                 benefit on the joint return to the
                 other individual.

                      (C) Exception for fraud.--The
                 Secretary   may   provide   for   an
                 allocation of any item in a manner
                 not prescribed by subparagraph (A)
                 if the Secretary establishes that
                 such allocation is appropriate due
                 to fraud of one or both individuals.

The electing spouse has the burden of proof with respect to

establishing the portion of any deficiency allocable to such

individual. See sec. 6015(c)(2).           As with section 6015(b), an

election for section 6015(c) relief must be made within 2 years

from the date the Secretary begins collection activities with

respect   to   the   individual    making    the   election.      See    sec.

6015(c)(3)(B).

     Section 6015(f) provides:

          SEC. 6015(f). Equitable Relief.–-Under procedures
     prescribed by the Secretary, if–-

               (1) taking into      account all the facts
          and circumstances, it     is inequitable to hold
          the individual liable     for any unpaid tax or
          any deficiency (or any    portion of either); and

               (2) relief is not available to              such
          individual under subsection (b) or (c),

    the Secretary     may   relieve   such    individual    of    such
    liability.
                                    - 15 -

Availability of Relief to Petitioner

     For the reasons that follow, we conclude that petitioner is

not entitled    to    innocent   spouse   relief     except   to    the    extent

provided below.

     A.    Relief Under Section 6015(b)

     Neither party disputes that in this case the requirements of

subparagraphs (A), (B), and (E) of section 6015(b)(1) have been

satisfied.4    Their dispute involves whether the requirements of

subparagraphs (C) and (D) of section 6015(b)(1) have been met.

     Section    6015(b)(1)(C)       contains   a   no    “knowledge       of   the

understatement”      requirement.       Petitioner      maintains    that      the

standard of inquiry to be used in determining whether the putative

innocent spouse knew, or had reason to know of, an understatement

of tax is whether, at the time the return was signed, a reasonably

prudent taxpayer in the spouse’s position could be expected to know

that the    stated    tax   liability   was    erroneous   or   that      further

investigation was warranted.         Based on this standard, petitioner

posits that even though she knew of the retirement distributions

and the interest income, she did not know that there was an

understatement of tax on the 1992 return.



     4
          Respondent has not objected to the manner in which
petitioner has raised a claim for innocent spouse relief under
sec. 6015. We thus treat the raising of innocent spouse relief
in the petition as a timely filed election. See Butler v.
Commissioner, 114 T.C. 276, 281-282 (2000); Charlton v.
Commissioner, 114 T.C. 333, 339 (2000).
                                      - 16 -

      We do not agree with petitioner’s standard of inquiry. The no

knowledge        of    the    understatement      requirement    of     section

6015(b)(1)(C)         is   similar   to   that   found   in   former    section

6013(e)(1)(C).         Where relief was requested under section 6013(e)

with respect to the omission of income (the situation involved

herein), both this Court and the Court of Appeals for the Fifth

Circuit, the court to which an appeal in this case would lie, have

concluded that where a spouse seeking relief has actual knowledge

of the underlying transaction that produced the omitted income,

innocent spouse relief is denied.           See Reser v. Commissioner, 112

F.3d 1258, 1265 (5th Cir. 1997), affg. in part and revg. in part

T.C. Memo. 1995-572; Bokum v. Commissioner, 94 T.C. 126, 148

(1990), affd. 992 F.2d 1132 (11th Cir. 1993).                 We believe this

standard applies for section 6015(b)(1) relief as well.

      Here, petitioner possessed actual knowledge of the underlying

transactions (the distribution of retirement proceeds and the

interest earned on the Austin Telco account) that gave rise to the

Cheshires’ understatement of tax.          Petitioner had been informed by

Mr. Cheshire that he was contemplating retirement and was eligible

to receive a substantial sum of money from his retirement plan.                By

the   end   of    January    1992,   petitioner    was   aware   of    both   the

retirement distribution proceeds and the existence of the Austin

Telco account. In fact, Mr. Cheshire showed petitioner the deposit
                                  - 17 -

slip and discussed with her the purposes for which the retirement

distribution proceeds would be used.

     Petitioner also had actual knowledge that interest was earned

on the Austin Telco account.      At all times, petitioner was aware of

the balance in this account and frequently wrote checks drawn on

its funds.    Moreover, bank statements and a Form 1099, Interest

Income, setting forth the amount of interest earned on the account

were sent to petitioner’s home.        Thus, petitioner does not satisfy

the no knowledge of the understatement requirement of section

6015(b)(1)(C). Moreover, because petitioner knew, or had reason to

know, of the entire amount of the retirement distributions and the

interest earned on the Austin Telco account, she is not entitled to

proportionate relief under section 6015(b)(2).

     B.   Relief Under Section 6015(c)

     In general, section 6015(c) allows proportionate tax relief

(if a timely election is made) through allocation of the deficiency

between individuals who filed a joint return and are no longer

married, are legally separated, or do not reside together for a 12-

month period.     Such allocation, however, is not permitted if the

Secretary demonstrates that the individual electing relief had

actual knowledge, at the time the return was signed, of any item

giving rise to a deficiency (or portion thereof) which is not

allocable    to   such   individual.    See   sec.   6015(c)(3)(C).   For

purposes of section 6015(c), unlike for purposes of section 6015(b)
                                  - 18 -

and (f), equitable considerations in holding the putative innocent

spouse liable for unpaid tax or any deficiency are of no import.

     In the instant case, neither party disputes that the principal

item giving rise to the deficiency is Mr. Cheshire’s receipt of the

retirement distribution proceeds,5 and that such item is allocable

to him under section 6015(d). Nor is there any dispute that

petitioner is entitled to make an election under section 6015(c) as

she and Mr. Cheshire were no longer married when petitioner filed

her petition    in   this   Court.   The   dispute   between   the   parties

involves whether petitioner had actual knowledge, at the time the

joint return was signed, of “any item giving rise to the deficiency

(or portion thereof)”.

     Petitioner posits that because she did not know that the

taxable amount of the retirement distribution was misstated on the

1992 joint return, she is entitled to section 6015(c) relief.

Respondent, on the other hand, maintains that ignorance of the tax

law is of no import–-if petitioner knew of the event or transaction

giving rise to the deficiency (which she admits she did), then

petitioner cannot obtain relief under section 6015(c).

     In   our   opinion,    the   knowledge    requirement     of    section

6015(c)(3)(C) does not require the electing spouse to possess

knowledge of the tax consequences arising from the item giving rise



     5
          Petitioner does not claim sec. 6015(c) relief with
respect to the omitted interest income.
                                   - 19 -

to the deficiency or that the item reported on the return is

incorrect.    Rather, the statute mandates only a showing that the

electing spouse actually knew of the item on the return that gave

rise to the deficiency (or portion thereof).                See Wiksell v.

Commissioner, 215 F.3d 1335 (9th Cir. 2000) (“the actual knowledge

inquiry in section 6015(c)(3)(C) focuses on whether the taxpayer

had knowledge ‘of any item giving rise to a deficiency’, not on the

tax   deficiency   itself”;    Court   of    Appeals   held   that    spouse

demonstrated actual knowledge of certain tax items by questioning

her spouse about them), affg. without published opinion T.C. Memo.

1999-32.     Here, when petitioner signed the joint return, she was

aware of the amount, the source, and the date of receipt of the

retirement distribution and interest.         She was, however, under a

misapprehension    as   to   the   taxable   amount    of   the   retirement

distribution.

      We believe the knowledge standard for purposes of section

6015(c)(3)(C) is an actual and clear awareness (as opposed to

reason to know) of the existence of an item which gives rise to the

deficiency (or portion thereof).        In the case of omitted income

(such as the situation involved herein), the electing spouse must

have an actual and clear awareness of the omitted income.6

Section 6015(c)(3)(C) does not require actual knowledge on the part



      6
          We leave to another day the manner in which the actual
knowledge standard will be applied in erroneous deduction cases.
                                  - 20 -

of the electing spouse as to whether the entry on the return is or

is not correct.

     We recognize that the Senate and conference reports contain

the statement that “if the IRS proves that the electing spouse had

actual knowledge that an item on a return is incorrect, the

election    will   not   apply   to   the   extent   any   deficiency   is

attributable to such item.”           H. Conf. Rept. 105-599, at 253

(1998); see S. Rept. 105-174, at 70 (1998).                Arguably, this

statement conflicts with our knowledge standard for purposes of

section 6015(c)(3)(C).     On the other hand, it can be read merely as

an example where relief is not warranted.

     Section 6015(c)(3)(C) does not explicitly state or reasonably

imply that relief is denied only where the electing spouse has

actual knowledge that the item giving rise to the deficiency (or

any portion thereof) is incorrectly reported on the return. As the

Supreme Court has stated “courts must presume that a legislature

says in a statute what it means and means in a statute what it says

there”.    Connecticut Natl. Bank v. Germain, 503 U.S. 249, 253-254

(1992). Were we to interpret section 6015(c)(3)(C) narrowly (by

denying relief only where the electing spouse actually knows that

the item giving rise to the deficiency is incorrectly reported on

the return), we would be redrafting the statute, something we may

not do.

     We now turn to the meaning of the word “item” for purposes of
                              - 21 -

section 6015(c)(3)(C).   Although the word “item” is not defined in

section 6015(c)(3)(C), we believe that in omitted income situations

“item” refers to the item of income that should have been reported

on the return .   An example contained in the report issued by the

Joint Committee on Taxation, accompanying RRA 1998, supports this

interpretation:

          The rule that the election will not apply to the
     extent any deficiency is attributable to an item the
     electing spouse had actual knowledge of is expected to be
     applied by treating the item as fully allocable to both
     spouses.   For example, a divorced couple filed a joint
     return during their marriage with wage income of $150,000
     allocable to the wife and $30,000 of self-employment
     income allocable to the husband.      On examination, an
     additional $20,000 of the husband’s self-employment
     income is discovered, resulting in a deficiency of
     $9,000.    The IRS proves that the wife had actual
     knowledge of $5,000 of this additional self-employment
     income, but had no knowledge of the remaining $15,000.
     In this case, the husband would be liable for the full
     amount of the deficiency, since the item giving rise to
     the deficiency is fully allocable to him. In addition,
     the wife would be liable for the amount that would have
     been calculated as the deficiency based on the $5,000 of
     unreported income of which she had actual knowledge.
     Even if the wife elects to limit the liability for the
     deficiency under this provision, the IRS would be allowed
     to collect that amount from either spouse, while the
     remainder of the deficiency could be collected only from
     the husband. [Emphasis supplied.]

Staff of Joint Comm. on Taxation, General Explanation of Tax

Legislation Enacted in 1998, at 70 (J. Comm. Print 1998).

     The meaning we give to an “item” that gives rise to a

deficiency, for purposes of the knowledge requirement found in

section 6015(c)(3)(C), is consistent with that of other sections of

the Code where the word “item” is used.    See, e.g., CIA v. Sims,
                                     - 22 -

471 U.S. 159, 169 (1985) (Supreme Court looks to other statutes in

defining “intelligence sources” and “confidential source[s]”.) For

instance, the Code defines “item” in other contexts, as follows:

Section 6231(a)(3) defines “partnership item” as “any item required

to be taken into account for the partnership’s taxable year under

any provision of subtitle A”; section 6231(a)(5) defines “affected

item” as “any item to the extent such item is affected by a

partnership item”; and section 6245 defines a “subchapter S item”

as   “any   item   of   an   S   corporation   to   the   extent   regulations

prescribed by the Secretary provide that, for purposes of * * *

[subtitle F of the Code (Procedure and Administration)], such item

is more appropriately determined at the corporate level than at the

shareholder level.”          In these circumstances, “item” is defined

without reference to its tax consequences.            Moreover, it is clear

under section 61 that an “item” is gross income from a particular

source, including pensions (the type of omitted income involved in

this case).

      Generally, ignorance of the tax law is not a defense to a

deficiency.    As we have previously stated:

      We reject [the taxpayer’s] assertion that she did not
      have “reason to know” * * * because of her insufficient
      legal acumen. As a practical matter, this argument is
      tantamount to a claim that ignorance of the law is an
      element of the innocent spouse defense, and, as such, is
      incorrect. * * * A taxpayer is presumed to have knowledge
      of the tax consequences of a transaction, but is not
      presumed to have knowledge of the transaction itself.
                                     - 23 -

Bokum    v.    Commissioner,   94    T.C.     at    150    (quoting     Stevens     v.

Commissioner, 872 F.2d 1499, 1508 n.8 (11th Cir. 1989), affg. T.C.

Memo. 1988-63 (citations omitted)); Estate of Hall v. Commissioner,

T.C. Memo. 1996-93, affd. 103 F.3d 112 (3d Cir. 1996).                     Were we to

accept the knowledge standard petitioner advocates (i.e., the

putative       innocent   spouse    is   entitled         to   relief      if   she/he

misunderstood or lacked knowledge of the Internal Revenue Code (the

Code)), then potentially any spouse who is not a certified public

accountant or tax attorney would be allowed to escape paying income

tax.    We do not believe Congress intended such a result.

       To conclude, petitioner had actual knowledge of the disputed

item of income (the retirement distribution proceeds), as well as

the amount thereof, that gave rise to the deficiency at the time

she signed the joint 1992 return.           The fact that petitioner did not

know that the amount of the retirement distribution was misstated

on the return is of no import.                Consequently, the benefits of

section 6015(c) are unavailable to her.

       C.     Relief Under Section 6015(f)

       Section 6015(f) confers discretion on the Secretary (and the

Secretary has delegated that discretion to respondent) to grant

innocent spouse relief to an individual (where relief is not

available under section 6015(b) or (c)) if taking into account all

the    facts    and   circumstances,     it    is   inequitable       to    hold   the

individual liable for any unpaid tax or deficiency (or any portion
                                    - 24 -

of either).    In the instant case, petitioner sought but was denied

relief    under     section      6015(f).       Petitioner        maintains     that

respondent’s      refusal   to   grant    relief       to   her   was   arbitrary,

capricious, and without sound basis in fact.

     Respondent acknowledges that we have jurisdiction to review

his denial of innocent spouse relief under section 6015(f).                      See

Butler    v.   Commissioner,      114    T.C.    276    (2000);     Fernandez    v.

Commissioner, 114 T.C. 324 (2000); Charlton v. Commissioner, 114

T.C. 333 (2000). We review respondent’s denial of equitable relief

to petitioner under an abuse of discretion standard.                 See Butler v.

Commissioner, supra at 292; Mailman v. Commissioner, 91 T.C. 1079,

1083 (1988); Estate of Gardner v. Commissioner, 82 T.C. 989, 1000

(1984).   This is a question of fact.           See Hospital Corp. of Am. v.

Commissioner, 81 T.C. 520, 594 (1983); Foster v. Commissioner, 80

T.C. 34, 160, 178 (1983), affd. in part and revd. in part on

another ground 756 F.2d 1430 (9th Cir. 1985).

     Petitioner’s claim for innocent spouse relief was initiated in

her petition to this Court.         Prior to trial, respondent conceded

that petitioner was entitled to relief with respect to certain

items omitted from the 1992 joint return and was not liable for the

section 6651(a)(1) addition to tax.             Presumably before doing so,

respondent     followed     standard      procedures        by     reviewing    his

administrative files and considered petitioner’s contentions.

     Respondent opposes petitioner’s claim for equitable relief
                                - 25 -

with respect to the retirement distribution proceeds, the interest

income, and the section 6662(a) accuracy-related penalty on the

grounds that it would not be inequitable to hold petitioner liable

for the tax on these items and that she failed to demonstrate

reasonable cause in omitting these items.             After taking into

account the facts and circumstances presented in this case, we do

not believe respondent abused his discretion in denying         equitable

relief to petitioner with respect to the retirement distribution

proceeds and interest income or with respect to the section 6662

penalty as it relates to the omitted interest income.         However, we

believe respondent’s denial of equitable relief to petitioner under

section 6015(f) to be an abuse of his discretion as it relates to

the section 6662(a) penalty applicable to the omitted retirement

distribution proceeds. The reasons for our overruling respondent’s

denial of relief regarding the section 6662(a) penalty applicable

to the retirement distribution proceeds are as follows:

     Section   6662(a)   does   not   apply    to   “any   portion   of   an

underpayment if it is shown that there was a reasonable cause for

such portion and that the taxpayer acted in good faith with respect

to such portion.”    Sec. 6664(c)(1).         After carefully observing

petitioner while testifying, we are satisfied that at the time she

signed the 1992 tax return, petitioner believed that the portion of

retirement distribution proceeds used to pay off the mortgage on
                                    - 26 -

the family residence would be nontaxable.                  Further, we believe

petitioner    acted     in   good   faith       in    reaching    this    erroneous

conclusion.

     Petitioner trusted and relied upon Mr. Cheshire when it came

to the preparation of their tax returns.                  She is an elementary

school teacher, having taken no courses in accounting or tax return

preparation.     She asked Mr. Cheshire about the potential tax

ramifications of the retirement distributions, and Mr. Cheshire

assured petitioner that he had consulted with a certified public

accountant and had been advised that the payment of the outstanding

mortgage on the family residence and any amount rolled over into a

qualified account reduced the taxable amount of the retirement

distributions.    Mrs.       Cheshire     had    no     reason     to    doubt   the

truthfulness of Mr. Cheshire’s statement, and in fact believed him.

Under these circumstances, we do not believe petitioner had an

obligation to inquire further.

     We conclude that petitioner would have been justified in

believing that $58,163 ($199,771 - $42,183 (rollover) - $99,425

(mortgage repayment)) of the $199,771 retirement distributions was

taxable. Indeed, $199,771 in retirement distributions was reported

on the 1992 return, albeit only $56,150 was included in the

calculation of income.         (The record does not reveal the $2,013

difference    between    $58,163    and     $56,150;      we     deem    the   $2,013

difference to be de minimis.)           In our opinion, it is an abuse of
                                        - 27 -

discretion to deny relief under section 6015(f) in an addition to

tax or penalty situation when on an individual basis the putative

innocent spouse meets the statutory standard generally applied to

all    taxpayers   that   shows    the     addition     to   tax   or    penalty    is

inapplicable.

       Given the facts and circumstances in this case, to hold

petitioner liable for the entire section 6662(a) penalty would be

inequitable.       Consequently, we hold that respondent abused his

discretion in failing to grant petitioner innocent spouse relief

from    the   section     6662(a)       penalty    as    it    relates      to     the

understatement     regarding      the    omitted      retirement        distribution

proceeds.     However, we conclude that respondent did not abuse his

discretion in failing to grant petitioner innocent spouse relief

from    the   section     6662(a)       penalty    as    it    relates      to     the

understatement regarding the omitted interest income.                    Petitioner

knew of that income, and the record is devoid of any reason for its

omission.     Consistent with these conclusions, the parties should

determine the exact amount of the section 6662(a) penalty due in

their Rule 155 calculation.
                             - 28 -

     To reflect the foregoing and respondent’s concessions,



                                                Decision will be

                                           entered under Rule 155.



Reviewed by the Court.

     WELLS, CHABOT, COHEN, RUWE, WHALEN, HALPERN, LARO, FOLEY, and
VASQUEZ, JJ., agree with this majority opinion.

     CHIECHI, J., concurs in the result only.
                                    - 29 -

      THORNTON, J., concurring:          No relief is available under

section 6015(c)(3)(C) if the Commissioner shows that the spouse

seeking relief had “actual knowledge * * * of any item giving rise

to a deficiency (or portion thereof)”.              Majority op. p. 17.       The

majority opinion appropriately construes this statutory language to

require, in the case of omitted income, “actual and clear awareness

of the omitted income.”           Thus, I believe, the majority opinion

inherently rejects respondent’s argument that actual knowledge of

an “item” means actual knowledge merely of the event or transaction

giving rise to the deficiency.           This result comports with the

ameliorative purposes of section 6015(c).              It is also consistent

with the statutory framework. In particular, if a spouse qualifies

under section 6015(c), the relief provided under section 6015(d) is

an allocation between spouses of the “items” giving rise to the

deficiency.     In this context, “item” clearly signifies the item of

omitted income, not the underlying event or transaction.

      The majority opinion harmonizes with the legislative history.

The relevant Senate and conference reports state that section

6015(c) provides no relief if the Commissioner proves that the

spouse seeking relief had “actual knowledge that an item on a

return is incorrect.”       What does it mean for an “item on a return”

(as   opposed    to   the   tax    treatment   of    such   an   item)   to    be

“incorrect”?    In the context of omitted income, and in the light of

the section 61 provisions defining gross income by reference to
                                  - 30 -

various “items,” it most likely means that gross income from a

particular source, such as a pension, is incorrectly reported

(either by virtue of understatement or omission) on the return.

The other statements of legislative purpose cited by the dissent

evince no clear consensus about any other standard of general

applicability and dictate no contrary result.

     Here   the   question   is   whether   Mrs.   Cheshire   had   actual

knowledge of the gross income from the pension that gave rise to

the deficiency. Clearly she did. Whether she believed the pension

proceeds distribution was nontaxable in whole or part on the ground

that it was used to pay down a mortgage or under some other

mistaken theory is immaterial.

     WHALEN, HALPERN, LARO, FOLEY, and VASQUEZ, JJ., agree with

this concurring opinion.
                                  - 31 -

     PARR, J., dissenting:      I have joined with Judge Colvin in his

dissenting opinion, because I believe the language of section

6015(c)(3)(C) is ambiguous and that we should consult legislative

history   for   guidance   in   resolving   that   ambiguity.   I   write

separately only to express my concern about the Court's application

of section 6013(e) case law to the case at hand.

     Section 6015 is a remedial statute, therefore, its provisions

should be construed and applied liberally in favor of those whom

the statute was designed to benefit.        Cf. Helvering v. Bliss, 293

U.S. 144, 150-151 (1934); Allen v. Commissioner, 514 F.2d 908, 915

(5th Cir. 1975).    Moreover, it is apparent that Congress intended

section 6015 to provide broader relief than that provided by

section 6013(e).

     In its discussion of section 6015(f), the majority has found--

and I agree--that, considering the facts and circumstances of this

case, it is not inequitable to hold petitioner liable for the

deficiency.     Since equitable consideration is also a requirement

for relief under section 6015(b)(1)(D), the majority's discussion

of section 6015(b)(1)(C) is unnecessary. The word "understatement"

used in section 6015(b)(1)(C) is different from the word "item"

construed in the discussion of section 6015(c)(3)(C).           Yet the
                             - 32 -

majority treats both as synonymous with "transaction".    I would

defer this discussion to a case that required it.1

     Accordingly, I respectfully dissent.

     COLVIN and MARVEL, JJ., agree with this dissenting opinion.




     1
      The facts of Charlton v. Commissioner, 114 T.C. 333 (2000),
are distinguishable, and the discussion of sec. 6015(b) therein
is thus not determinative.
                                  - 33 -

      COLVIN, J., dissenting:     Section 6015(c)(3)(C) provides that

the   separate   liability   election      is    not    available     if   the

Commissioner proves that the putative innocent spouse “had actual

knowledge * * * of any item giving rise to a deficiency”.                  The

majority holds that in omitted income cases:

      Section 6015(c)(3)(C) does not require actual knowledge
      on the part of the electing spouse as to whether the
      entry on the return is or is not correct. [Majority op.
      pp. 19-20.]

      I respectfully dissent because the majority’s construction of

section 6015(c)(3)(C)     squarely   conflicts     with    the   legislative

history of section 6015(c).       I also dissent because the majority

fails to discuss Charlton v. Commissioner, 114 T.C. 333 (2000), and

relies on Wiksell v. Commissioner, 215 F.3d 1335 (9th Cir. 2000)

(unpublished), affg. T.C. Memo. 1999-32, which did not present the

issue we face here.

 I.   The Phrase “Item Giving Rise to a Deficiency” Is Ambiguous

      Section 6015(c)(3)(C) provides in pertinent part that:

      [i]f the Secretary demonstrates that an individual making
      an election under this subsection had actual knowledge,
      at the time such individual signed the return, of any
      item giving rise to a deficiency (or portion thereof)
      which is not allocable to such individual under
      subsection (d), such election shall not apply to such
      deficiency (or portion). * * * [Emphasis added.]

Sec. 6015(c)(3)(C).

      Thus,   section   6015(c)   relief    is    not     available    if the

Commissioner proves that the putative innocent spouse had actual

knowledge of any “item giving rise to a deficiency”.             That phrase
                               - 34 -

is ambiguous; the “item” of which the putative innocent spouse must

have had actual knowledge could be either of two things.         First, it

might refer to a transaction or activity.             If so, then, as

respondent contends, see majority op. at 18, a putative innocent

spouse would not qualify for the separate liability election under

section 6015(c) if the Commissioner showed that he or she knew that

an income-producing transaction or activity had occurred.

     Alternatively,   knowledge   of    an   “item   giving    rise   to   a

deficiency” might refer to knowledge that an entry on a tax return

was incorrect.    Under this interpretation, the putative innocent

spouse would not be disqualified under section 6015(c) merely

because he or she knew that the income-producing transaction or

activity giving rise to the deficiency had occurred.          Instead, the

Commissioner would be required to show that the electing spouse had

actual knowledge that the treatment of the item on the tax return

was incorrect.1


     1
        That “item giving rise to a deficiency” could be
reasonably construed in either of these ways is demonstrated by
the fact that the Internal Revenue Code uses the term “item” to
refer both to an underlying activity and to the tax return
treatment of an activity. As an example of the former, sec.
61(a) provides that–

          SEC. 61(a). * * * Except as otherwise provided
     in this subtitle, gross income means all income from
     whatever source derived, including (but not limited to)
     the following items:

          (1) Compensation for services, including
          fees, commissions, fringe benefits, and
                                                         (continued...)
                                       - 35 -

     II.     Statutory Context and Legislative History Make Section
                               6015(c) Clear

A.      Section 6015(c) Compared to Former Section 6013(e)(1)(C)

        In an unreported income case, a taxpayer failed to qualify for

innocent spouse relief under former section 6013(e)(1)(C) if the

taxpayer      had     knowledge   of   the   transaction   which   led   to   the

understatement.          See Reser v. Commissioner, 112 F.3d 1258, 1267

(5th Cir. 1997).          The instant case is also an unreported income

case, and respondent contends we should apply the same standard

here.       See majority op. at 18.

      Congress enacted sweeping changes to the innocent spouse

provisions       in    1998.      In   addition   to   liberalizing      section

6013(e)(1)(C) in new section 6015(b), Congress also provided two

additional forms of innocent spouse relief: the separate liability

election (section 6015(c)) and authority for the Secretary to grant

relief on equitable grounds (section 6015(f)).                 Congress also

enacted a different knowledge requirement in section 6015(c)(3)(C)

than had applied in former section 6013(e)(1)(C).              First, section



        1
         (...continued)
             similar items;

               (2) Gross income derived from business;

As an example of the latter, sec. 57(a) refers to various “items
of tax preference”, all of which are defined by reference to tax
consequences. Thus, the phrase “item giving rise to a
deficiency” in sec. 6015(c)(3)(C), actual knowledge of which
causes a putative innocent spouse to fail to qualify under sec.
6015(c), is reasonably subject to more than one interpretation.
                                      - 36 -

6015(c)(3)(C) places the burden of proof on the Commissioner; under

former section 6013(e) it was on the taxpayer.                  Second, section

6015(c)(3)(C)    requires      that    the     putative      innocent     spouse’s

knowledge be actual; former section 6013(e)(1)(C) required only

that the putative innocent spouse “know or have reason to know”.

Third, section 6015(c) requires that the putative innocent spouse

had the requisite knowledge “at the time such individual signed the

return”; former section 6013(e)(1)(C) required that he or she had

the requisite knowledge “in signing the return”.                 Fourth, section

6015(c)   requires     that   the   putative     innocent      spouse    have    the

requisite knowledge of “any item giving rise to a deficiency”;

former section 6013(e)(1)(C) required that the putative innocent

spouse know “that there was such substantial understatement”.

These broad structural changes, and the specific changes to the

knowledge requirement, dictate that we be cautious in applying

interpretations of former section 6013(e)(1)(C) to section 6015(c).

B.    Legislative History

      As stated, the knowledge requirement in section 6015(c) is

reasonably subject to different interpretations.                 We may consider

legislative history to resolve statutory ambiguity.                   See Robinson

v. Shell Oil Co., 519 U.S. 337, 340 (1997); Golden Rod Farms, Inc.

v.   United   States,   115   F.3d     897,    899   (11th     Cir.   1997).      We

especially    should    respect     legislative      history    where    there    is

unequivocal evidence of legislative purpose.                 See Huntsberry v.
                                  - 37 -

Commissioner, 83 T.C. 742, 747-748 (1984).

     The separate liability election provisions originated in the

Senate   version   of   section   6015.2   The   legislative   history

consistently shows that Congress intended “actual knowledge” to be

knowledge that the return is incorrect.

     First, the Senate Committee on Finance report states that a

putative innocent spouse will not qualify for relief under section

6015(c) if the Commissioner shows that he or she had actual

knowledge that any item on the return was incorrect.      The Senate

Committee on Finance report provides that:

     if the IRS proves that the electing spouse had actual
     knowledge that an item on a return is incorrect, the
     election will not apply to the extent any deficiency is
     attributable to such item. [Emphasis added.]

S. Rept. 105-174, at 59 (1998).

     Second, the Senate Committee on Finance report, in the “Reasons

for Change” section, stated the following with respect to the

separate liability election:

          The Committee intends that this election be
     available to limit the liability of spouses for tax
     attributable to items of which they had no knowledge.
     The Committee is concerned that taxpayers not be allowed
     to abuse these rules by knowingly signing false returns,


     2
        Under the Senate version of sec. 6015(c), the separate
liability election was a complete substitute for innocent spouse
relief under sec. 6013(e). Under the conference agreement and as
enacted, sec. 6013(e) was repealed and reenacted in liberalized
form as sec. 6015(b), and the separate liability election was
provided as an alternative, available only to individuals no
longer married, legally separated, or living apart for at least
12 months.
                                 - 38 -

      or by transferring assets for the purpose of avoiding the
      payment of tax by the use of this election.           The
      Committee believes that rules restricting the liability
      of taxpayers to limit their liability in such situations
      are appropriate. [Emphasis added.]

S. Rept. 105-174, at 55-56 (1998).        Thus, the Senate Committee on

Finance equated “actual knowledge” with “knowingly signing [a] false

return”.

        Third, Senator Graham said the following in offering amendments

to section 6015(c) (unanimously adopted by the Senate)       on behalf

of himself and other Senate Committee on Finance members:

      The primary exception [to allocable liability under
      section 6015(c)] was that if the Secretary of the
      Treasury could demonstrate–-and the burden is on the
      Secretary of the Treasury to demonstrate-–that an
      individual making this election to be taxed only for
      their proportional share of the deficiency of the return,
      that if they had actual knowledge of the conditions
      within that return which led to this deficiency, then
      they would be 100 percent responsible.     [Senate Floor
      Debate for Amendment No. 2369, 144 Cong. Rec. 56, S4473;
      emphasis supplied]

Senator D’Amato, also a member of the Senate Committee on Finance,

said:

           There were concerns, and rightly so, that some
      taxpayers may try to abuse the innocent spouse rules by
      knowingly signing false returns, or transferring assets
      for the purpose of avoiding the payment of tax, and then
      claim to be innocent. Obviously, no one would want to
      open the door to that type of fraud. As such, language
      was included in the bill that would prevent an individual
      from electing the innocent spouse provision if they had
      “actual knowledge of any item giving rise to a
      deficiency.” [Emphasis added.]

Id.

      Fourth, using language identical to that used by the Senate

Committee on Finance, the conference report states that a putative
                               - 39 -

innocent spouse will not qualify for relief under section 6015(c)

if he or she had actual knowledge that any item on the return was

incorrect.    The conference report states that:

     if the IRS proves that the electing spouse had actual
     knowledge that any item on a return is incorrect, the
     election will not apply to the extent any deficiency is
     attributable to such item. [Emphasis added.]

H. Conf. Rept. 105-599, at 253 (1998).       Thus, the legislative

history unequivocally shows that Congress intended to require the

Commissioner to prove that the putative innocent spouse knew that

his or her tax return was incorrect.3

     The passage from the legislative history on which the majority

relies relates to the allocation of items between the two spouses

when one qualifies for the separate liability election.          See

majority op. at 21. It does not describe the knowledge requirement,

interpretation of which is at issue here, and thus does not address

this issue.    Further, statutory language in the allocation rule

undermines the majority’s position. Section 6015(d)(3)(A) provides

that:

          (A) In general.–Except as provided in paragraphs (4)
     and (5), any item giving rise to a deficiency on a joint
     return shall be allocated to individuals filing the


     3
        Contrary to the suggestion that this language might
merely be an example of a situation where relief is not
warranted, the above-quoted passage from the conference report
and the identical language from the Finance Committee report are
explanations of the statutory rule, not examples. The Finance
Committee report and the conference report have a specific way to
present examples. First, they state a general point; then they
state “For example, * * *” to illustrate the point. This pattern
is repeated seven times in the Finance Committee’s explanation of
sec. 6015 and seven times in the conference report’s explanation
of sec. 6015.
                                     - 40 -

     return in the same manner as it would have been allocated
     if the individuals had filed separate returns for the
     taxable year. [Emphasis added.]

The text of section 6015(d)(3)(A) implies that an “item giving rise

to a deficiency” is an item on the return rather than a underlying

transaction or activity because an amount on a return can be

allocated, i.e., split, but an underlying transaction or activity

cannot.

     Thus, the legislative history accompanying enactment of section

6015(c)     clearly   shows   that    Congress      intended   the   knowledge

requirement to mean knowledge that the return is incorrect, not

knowledge     that    there   was    an     income-producing     activity   or

transaction.     See S. Rept. 105-174, at 59 (1998), H. Conf. Rept.

105-599, at 253 (1998).       The majority fails to apply that standard.

See majority op. at 20.

     The    majority’s    reliance     on     the   TEFRA   partnership   rules

(sections 6231 and 6245) to construe “item” is not persuasive

because those sections do not speak to the interpretative issue we

face under section 6015(c)(3)(C).

 III. The Majority Disregards the Requirement in the Conference
  Report That the Commissioner Prove That the Putative Innocent
     Spouse Knew That an Item on the Return Was “Incorrect”

     As stated above, the majority holds that, in omitted income

cases, section 6015(c)(3)(C) does not require actual knowledge on

the part of the electing spouse as to whether the entry on the

return is or is not correct.         See majority op. at 20.4


     4
          The majority also suggests another standard; i.e., that
                                                       (continued...)
                                - 41 -

     The majority concludes that petitioner inquired in good faith

as to whether her return was correct, she was assured that it was

correct, and she had no obligation to inquire further.   See majority

op. at 26.    In explaining its holding that it was an abuse of

discretion for respondent not to grant equitable relief under

section 6015(f) as to petitioner’s liability for the section 6662(a)

accuracy-related penalty, the majority states:

     we are satisfied that at the time she signed the 1992 tax
     return, petitioner believed that the portion of retirement
     distribution proceeds used to pay off the mortgage on the
     family residence would be nontaxable. Further, we believe
     that petitioner acted in good faith in reaching this
     erroneous conclusion.

                          * * * * * * *

     [Petitioner] asked Mr. Cheshire about the potential tax
     ramifications of the retirement distributions, and in
     response, Mr. Cheshire assured petitioner that he had
     consulted with a certified public accountant and had been
     advised that the payment of the outstanding mortgage on
     the family residence and any amount rolled over into a
     qualified account reduced the taxable amount of the
     retirement distributions. Mrs. Cheshire had no reason to
     doubt the truthfulness of Mr. Cheshire’s statement, and in
     fact believed him. Under these circumstances, we do not
     believe petitioner had an obligation to inquire further.

Majority op. at 25-26.   In short, the majority holds that petitioner

thought the reporting of the distributions on her tax return was

correct.   Thus, in holding for respondent, the majority disregards



     4
      (...continued)
“the electing spouse must have an actual and clear awareness of
the omitted income.” See majority op. p. 19. If sec.
6015(c)(3)(C) is unambiguous, we need not create another
standard; if it is ambiguous, legislative history provides the
standard; i.e., that relief is not available if the Commissioner
proves that the electing spouse had actual knowledge that any
item on a return is incorrect.
                                  - 42 -

the requirement in the Senate Committee on Finance report and

conference report that the putative innocent spouse know something

was “incorrect”.     See majority op. at 20.

                      IV.   Wiksell v. Commissioner

     The taxpayer in Wiksell v. Commissioner, 215 F.3d 1335 (9th

Cir. 2000) (unpublished), affg. T.C. Memo. 1999-32, knew that checks

she received from her husband’s business had not been reported on

their 1994 and 1995 tax returns.    See id. at 2000-1336, 88-983.     She

also had actual knowledge that the return was incorrect.         See the

findings of fact in Wiksell v. Commissioner, T.C. Memo. 1994-99.

     The issue in Cheshire is whether knowledge of an “item giving

rise to a deficiency” refers to the putative innocent spouse’s

knowledge of the underlying activity, or knowledge that the income,

deduction, loss, or credit from the activity is incorrectly reported

on the tax return.    The opinion of the U.S. Court of Appeals for the

Ninth Circuit in Wiksell v. Commissioner, supra, does not discuss

the “knowledge that any item on the return is incorrect” language

from the legislative history.     The opinion of the Court of Appeals

does not say the parties disputed, or that the Court of Appeals

considered, whether the actual knowledge of “any item giving rise to

a deficiency” required by section 6015(c) is knowledge of an income-

producing   transaction,     or   knowledge    that   it   was   reported

incorrectly.   In fact, since Mrs. Wiksell knew her return was wrong,

the Court of Appeals had no need to consider that issue.
                                  - 43 -

                      V.   Charlton v. Commissioner

       In Charlton v. Commissioner, 114 T.C. 333 (2000), the putative

innocent spouse knew of and had access to correct information about

his then-wife’s income-producing activity.        See Charlton, 114 T.C.

at 341.    Even though the putative innocent spouse in Charlton knew

that his wife had an income-producing Schedule C business, we

concluded that the Commissioner failed to show that the putative

innocent spouse had knowledge when he signed the return of any item

giving rise to a deficiency.      See id.    Thus, Charlton may be cited

for the proposition (contrary to respondent’s position in Cheshire,

majority op. at 18) that knowledge of the income-producing activity

does not bar relief under section 6015(c).

       The majority finds that petitioner knew that Mr. Cheshire

received retirement distributions and interest on the Austin Telco

account in 1992, and that she knew the amounts of the retirement

distributions and interest.        See majority op. pp. 4, 16, 23.

However, the majority’s failure to discuss Charlton will inevitably

cause confusion because, both here and in Charlton, we found that

the putative innocent spouse knew of the activity which gave rise to

the deficiency.      Under the doctrine of stare decisis we generally

follow the holding of a previously decided published opinion of the

Tax Court or explain why we are not doing so.          This is especially

true    when   our    prior   published     opinion   involves   statutory
                                      - 44 -

construction.    See Hesselink v. Commissioner, 97 T.C. 94, 99-100

(1991).

       The majority concludes that the knowledge requirement of

section 6015(c) does not require the electing spouse to know that

the item on the return is incorrect, see majority op. pp. 19-20, and

points out that petitioner knew the amount of the unreported income.

See majority op. p. 23.        In contrast, the putative innocent spouse

in Charlton did not know the amount of unreported income from his

then-wife’s    business.       This     might    be   how   the   majority     would

distinguish Charlton from the instant case; i.e., that knowledge of

an   income-producing       transaction    or    activity      does   not   cause   a

putative innocent     spouse     to    fail     to   qualify   for    the   separate

liability election unless the putative innocent spouse knew the

amount of income involved.            If the majority is promulgating this

factual distinction as a new standard, it should so state.



     PARR,    GALE,   and    MARVEL,    JJ.,     agree   with     this   dissenting
opinion.
