                      116 T.C. No. 16



                UNITED STATES TAX COURT



             KATHY A. KING, Petitioner AND
           CURTIS T. FREEMAN, Intervenor v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 5989-97.                     Filed April 10, 2001.



     P claimed relief from joint liability under sec.
6013(e), I.R.C., which was repealed and replaced by
sec. 6015, I.R.C. Intervenor (I) is P’s former spouse,
who intervened pursuant to sec. 6015(e)(4), I.R.C., in
opposition to P’s claim for relief. See King v.
Commissioner, 115 T.C. 118 (2000). P and I filed a
joint income tax return for 1993, on which they claimed
a loss from a cattle-raising activity conducted by I.
The loss was disallowed by R on the ground that the
activity was not engaged in for profit under sec.
183(a), I.R.C.

     1. Held: P meets all the requirements for relief
under sec. 6015(c), I.R.C., unless R demonstrates that
P had actual knowledge of the item giving rise to the
deficiency at the time she signed the return. See sec.
6015(c)(3)(C), I.R.C. When the item giving rise to the
deficiency is a disallowed deduction, such knowledge
must include knowledge of the factual circumstances
                                - 2 -


     giving rise to the disallowance of the deduction. In
     this case, the fact giving rise to the disallowance was
     I’s lack of a profit objective. R did not establish
     that, at the time P signed the return, P had actual
     knowledge that I, her spouse, did not have a primary
     purpose or objective of making a profit under sec.
     183(a), I.R.C., with respect to the activity that
     generated the disallowed loss. Accordingly, P is
     entitled to relief from joint liability.

          2. Held, further, since the activity in question
     was attributable solely to I, and there were no other
     adjustments in the notice of deficiency, the relief to
     P extends to the full amount of the deficiency.


     Kathy A. King, pro se.

     Curtis T. Freeman, pro se.

     James R. Rich, for respondent.


                               OPINION


     RUWE, Judge:    This case was assigned to Special Trial Judge

D. Irvin Couvillion pursuant to section 7443A(b)(3)1 and Rules

180, 181, and 182.   The Court agrees with and adopts the opinion

of the Special Trial Judge, which is set forth below.


               OPINION OF THE SPECIAL TRIAL JUDGE


     COUVILLION, Special Trial Judge:    Respondent determined a

deficiency of $7,781 in petitioner’s Federal income tax for 1993.


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 3 -


     The sole issue for decision is whether petitioner is

entitled to relief from joint liability under section 6015.    The

underlying deficiency determined by respondent in the notice of

deficiency is not at issue.   Curtis T. Freeman (intervenor) is

the former spouse of petitioner and filed an intervention in this

proceeding pursuant to section 6015(e)(4) objecting to the

granting of relief to petitioner under section 6015.   See Interim

Rule 325; King v. Commissioner, 115 T.C. 118 (2000).

     At the time the petition was filed, and at the time the

notice of intervention was filed, the legal residence of

petitioner and intervenor was Hartsville, South Carolina.

     Petitioner and intervenor were married during 1982.    During

1981, intervenor had purchased approximately 100 acres of land at

Hartsville, South Carolina, and had begun a cattle-raising

activity that continued for several years, including the 1993 tax

year at issue.   This activity commenced with one or two cows,

then grew to a herd of 25-30 cows with intermittent sales and

purchases of cows and calves along the way.   It was by no means a

profitable activity, although intervenor had the expectation

that, over time, the activity would become profitable.

Intervenor allowed some of his neighbors to pasture their

livestock on the property, and the neighbors, in turn, assisted

to some degree in caring for intervenor’s livestock when

intervenor was frequently away from home in connection with his
                                - 4 -


sole income activity, a used car business.    Petitioner frequently

visited the farm, with the children, and assisted minimally in

its operation.   However, petitioner maintained or kept records of

sales, purchases, and expenses.    She did not maintain a formal

set of books but made sure that all records were kept together

and submitted to their tax return preparer each year for

inclusion on the joint Federal income tax returns she and

intervenor filed.    Petitioner knew that the cattle-raising

activity was not profitable, but she had expectations that, at

some point, the activity would become profitable.    Petitioner and

intervenor separated in May 1993, and, thereafter, petitioner no

longer maintained records of the cattle-raising activity as she

had done in the past; however, she knew that intervenor continued

with the activity.    The record does not show in what year

petitioner and intervenor commenced reporting the income and

expenses from the cattle-raising activity on their Federal income

tax returns, although the testimony at trial indicates that the

activity was reported on their joint income tax returns for the

years 1989 and thereafter.    For the year 1993, petitioner and

intervenor reported gross income of $802, expenses of $28,199,

and a net loss of $27,397 from the cattle-raising activity on

Schedule C of their return, Profit or Loss From Business.

     Petitioner and intervenor were divorced in May 1995.      On

December 23, 1996, respondent issued separate notices of
                                - 5 -


deficiency to petitioner and intervenor for the year 1993 and

determined in each notice a tax deficiency of $7,781.    In these

notices of deficiency, respondent disallowed the $27,397 cattle

activity loss claimed on Schedule C of the 1993 joint Federal

income tax return.    The basis for the disallowance was that the

cattle activity was not an activity engaged in for profit under

section 183.   Respondent made no adjustments to the income or

expense amounts reported and claimed in connection with the

activity.   The only other adjustments in the notices of

deficiency flowed from the disallowed cattle activity loss.

     Petitioner filed a timely petition with this Court.

Intervenor did not petition this Court.    Respondent, in due

course, assessed the deficiency against intervenor, but no

portion of that assessment has been paid, nor has intervenor

challenged the assessment in any other court.

     In this case, petitioner does not challenge the disallowed

Schedule C cattle-raising activity loss.    Her sole contention is

that she is entitled to relief from joint liability under section

6013(e).    After the case was tried and taken under advisement,

section 6013(e) was repealed and was replaced with section 6015,

which retroactively applies to this case.    Moreover, the

intervention emanates from section 6015(e)(4).2   The case was


     2
      See King v. Commissioner, 115 T.C. 118 (2000), for the
                                                   (continued...)
                               - 6 -


again calendared for trial and heard pursuant to the provisions

of section 6015.   Intervenor participated in the trial and

objected to petitioner’s being relieved of liability under

section 6015.   In a supplemental trial memorandum, respondent

asserted that petitioner was not entitled to relief under section

6015(b) or (c).3

     In Cheshire v. Commissioner, 115 T.C. 183, 189 (2000), the

Court succinctly set forth the legislative history of section

6015 as follows:


          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


     2
      (...continued)
procedural history of this case.
     3
      Pursuant to the Court’s holding in King v. Commissioner,
supra, the Court’s order calendaring this case for further trial
stated that the only issue to be considered by the Court would be
petitioner’s claim for relief under sec. 6015, and the Court
would not consider any challenges to the underlying deficiency by
either petitioner or intervenor.
                                 - 7 -


     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, supra at 251.


     We consider the merits of this case under section 6015(c),

which, in pertinent part, provides:


          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).

               (2) Burden of proof.--Except as provided in
          subparagraph (A)(ii) or (C) of paragraph (3), each
          individual who elects the application of this
          subsection shall have the burden of proof with respect
          to establishing the portion of any deficiency allocable
          to such individual.

               (3) Election.--

         *       *       *         *     *       *      *

                    (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 portion). * * *
                               - 8 -


     In Martin v. Commissioner, T.C. Memo. 2000-346, the Court

stated:


     section 6015(c) relieves certain joint-filing taxpayers by
     making them liable only for those items of which they had
     actual knowledge, rather than being liable for all items
     reportable on the joint return. In effect, this approach is
     intended, to the extent permitted, to treat certain spouses
     as though they had filed a separate return. This is a
     departure from predecessor section 6013(e) and companion
     section 6015(b) where the intended goal was to permit relief
     only if the relief-seeking spouse did not know or had no
     reason to know of an item.

          Accordingly, taxpayers who are either no longer
     married, separated (for 12 months or more), or not living
     together * * * may elect treatment as though they had
     separately filed. Section 6015(c)(3)(C), however, does not
     permit the election of separate treatment for any item where
     “the Secretary demonstrates that an individual * * * had
     actual knowledge, [of the item] at the time such individual
     signed the return”. * * *


     In this case, the activity giving rise to the deficiency,

i.e., the cattle-raising activity, was attributable solely to

intervenor.   As noted above, relief under section 6015(c)(3)(C)

is not available to petitioner if respondent demonstrates that

petitioner had actual knowledge of the item giving rise to the

deficiency.

     In Cheshire v. Commissioner, supra, this Court held that,

where the spouse claiming relief under section 6015(b) or (c) had

actual knowledge of items of omitted income but did not have

knowledge “whether the entry on the return is or is not correct",

relief was not available.   Id. at 195.   In furtherance of the
                               - 9 -


point, the Court stated:


          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 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). * * * [Id. at 194.]


See also Martin v. Commissioner, supra, where this Court stated:

“Thus, in Cheshire v. Commissioner, supra, we concluded that

ignorance of the applicable tax law is no excuse and that

respondent had met his burden of proving knowledge of the omitted

income.”4

     The Cheshire case involved taxable retirement income

distributions received by the taxpayer’s spouse that were not

reported on the taxpayers’ joint income tax return.   The Court

held that 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).”   Cheshire v. Commissioner,

supra at 195.   The Court further stated:   “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


     4
      The quoted statement relates to sec. 6015(c)(3)(C), where
the Commissioner has the burden of proof with respect to
knowledge of the item giving rise to the deficiency.
                                - 10 -


income.”   Id.   The Court appended to that statement a footnote

stating:   “We leave to another day the manner in which the actual

knowledge standard will be applied in erroneous deduction cases.”

Id. n.6.   Since the taxpayer’s claim for relief in Cheshire was

based solely on lack of knowledge of the tax consequences of the

unreported income, relief was denied under section 6015(c).   This

case involves an erroneous deduction.

     Respondent disallowed the deduction involved in this case

because petitioner’s former spouse lacked the necessary profit

objective.   Even under prior section 6013(e), where the spouse

claiming relief was required to prove lack of knowledge of the

item, we said that “the taxpayer claiming innocent spouse * * *

[relief] must establish that he or she is unaware of the

circumstances that give rise to error on the tax return, and not

merely be unaware of the tax consequences.”    Bokum v.

Commissioner, 94 T.C. 126, 145-146 (1990) (emphasis added), affd.

992 F.2d 1132 (11th Cir. 1993).    As previously indicated,

Congress was attempting to expand relief from joint liability

when it enacted section 6015.    When a spouse elects relief under

section 6015(c), the burden of proving the spouse’s actual

knowledge of the item in order to deny relief is on the

Commissioner.5   We therefore hold that the proper application of


     5
      See Culver v. Commissioner, 116 T.C.     (2001) (the
                                                    (continued...)
                              - 11 -


the actual knowledge standard in section 6015(c)(3)(C), in the

context of a disallowed deduction, requires respondent to prove

that petitioner had actual knowledge of the factual circumstances

which made the item unallowable as a deduction.   Consistent with

Cheshire, such actual knowledge does not include knowledge of the

tax laws or knowledge of the legal consequences of the operative

facts.6

     The factual basis for respondent’s determination in this

case was the lack of required profit objective on the part of

petitioner’s former spouse.   Section 183(a) disallows any

deductions attributable to activities not engaged in for profit

except as provided under section 183(b).   Section 183(c) defines

an activity not engaged in for profit as “any activity other than

one with respect to which deductions are allowable for the

taxable year under section 162 or under paragraph (1) or (2) of

section 212.”   This case is appealable to the Court of Appeals

for the Fourth Circuit.   The standard for determining whether

expenses of an activity are deductible under either section 162



     5
      (...continued)
Commissioner’s burden of proof under sec. 6015(c)(3)(C) is met by
a preponderance of the evidence).
     6
      We note that in Cheshire v. Commissioner, 115 T.C. 183
(2000), the spouse claiming relief was found to have actual
knowledge of factual circumstances that caused the items of
omitted income to be taxable and that her omission was based on
her misunderstanding of the law.
                              - 12 -


or section 212(1) or (2) in the Court of Appeals for the Fourth

Circuit is whether the taxpayer engaged in the activity primarily

for the purpose of making a profit.    See Hendricks v.

Commissioner, 32 F.3d 94, 97 n.6 (4th Cir. 1994), affg. T.C.

Memo. 1993-396.   While a reasonable expectation of profit is not

required, a taxpayer’s profit objective must be bona fide.    See

Hulter v. Commissioner, 91 T.C. 371 (1988).    Whether a taxpayer

is primarily engaged in the activity for profit is a question of

fact to be resolved from all relevant facts and circumstances.

See id. at 393; Golanty v. Commissioner, 72 T.C. 411, 426 (1979),

affd. without published opinion 647 F.2d 170 (9th Cir. 1981).       In

resolving this factual question, greater weight is given to

objective facts than to the taxpayer’s after-the-fact statements

of intent.   See Siegel v. Commissioner, 78 T.C. 659, 699 (1982);

sec. 1.183-2(a), Income Tax Regs.

     Thus, several factors are taken into consideration in

determining whether an activity is engaged in primarily for

profit under section 183.   Generally, these factors, set out in

section 1.183-2(b), Income Tax Regs., include:   (1) The manner in

which the activity is conducted, (2) the taxpayer’s expertise,

(3) the time and effort expended in the activity, (4) an

expectation that the assets used in the activity may appreciate

in value, (5) the success of the taxpayer in other similar or

dissimilar activities, (6) the history of income or losses of the
                               - 13 -


activity, (7) the taxpayer’s financial status, and (8) elements

indicating personal pleasure or recreation associated with the

activity.    These factors are relevant in the context of this case

to the extent they may indicate whether petitioner knew or

believed that her former spouse was or was not engaged in the

cattle-raising activity primarily for profit.

     The question in this case, therefore, is not whether

petitioner knew the tax consequences of a not-for-profit activity

but whether she knew or believed that her former spouse was not

engaged in the activity for the primary purpose of making a

profit.    Thus, in determining whether petitioner had actual

knowledge of an improperly deducted item on the return, more is

required than petitioner’s knowledge that the deduction appears

on the return or that her former spouse operated an activity at a

loss.    Whether petitioner had the requisite knowledge is an

essential fact respondent was required to establish under section

6015(c)(3)(C).    Respondent failed in this regard.   The Court is

satisfied that petitioner’s knowledge of the activity in question

was that it was an activity that she knew was not profitable but

that she hoped and expected would become profitable at some

point.    Respondent presented insufficient evidence to show that

petitioner knew that her former spouse did not have a primary

objective of making a profit with his cattle-raising activity.

Petitioner, therefore, is entitled to relief from the tax
                             - 14 -


liability arising out of this activity under section 6015(c).

Since the activity was an activity attributable solely to her

former spouse, the relief to petitioner extends to the full

amount of the deficiency.


                                        Decision will be entered

                                   for petitioner.
