In Uncategorized on 10/28/2019 at 22:48

The Mack Gordon-Harry Warren 1943 Oscar winner echoes through Tax Court, as Judge Paris goes to “preponderance of the evidence” and bids farewell to burden of proof where IRS folds an innocent spouser, but intervenor goes all-in.

Here’s Jane M. Lassek, Petitioner, and Michael E. Smith, Intervenor, 2019 T. C. Memo. 145, filed 10/28/19. It’s the usual; IRS folds one of two years at issue, intervenor opposes both years.

Petitioner goes one for two, as Judge Paris is down with the conceded year despite intervenor’s objections. The non-conceded year is a win for IRS and intervenor.

Like 98% of innocent spousers, it’s a fact-bound trudge through Rev. Proc. 2013-34 (which I’ve exhaustively blogged), and The Big Seven Factors. Taxpayer First plays no part, as no newly-discovered evidence.

The reason I’m bothering with this at all is stated in the title.

As far as Judge Paris is concerned (and I’m thinking she is speaking for her colleagues as well), where IRS folds and intervenor fights on, burden of proof is invariably irrelevant. So preponderance-of-the-evidence wins the day.

In this case, the question was the requesting spouse’s actual knowledge that the MFJ return understated income. Intervenor claimed requestor “had reason to know.” Not good enough.

“If, as here, all of the other requirements of that section [6015(c)] have been satisfied, then, as relevant here, the burden of proof is shifted to the Commissioner and relief is denied to the requesting spouse only if the Commissioner “demonstrates that * * * [the requesting spouse] had actual knowledge, at the time such individual signed the return, of any item giving rise to a deficiency”. Sec. 6015(c)(3)(C); see Charlton v. Commissioner, 114 T.C. 333, 341 (2000); Martin v. Commissioner, T.C. Memo. 2000-346, slip op. at 12-13.” 2019 T. C. Memo. 145, at p. 13.

But if IRS folds, where does the burden of proof go?

“An issue arises where the burden of proof shifts to the Commissioner in cases when the Commissioner favors granting relief and the nonrequesting spouse intervenes to oppose it. The Court has previously resolved this issue of burden shifting by deciding the case on a preponderance of the evidence as presented by all three parties. See Hollimon v. Commissioner, T.C. Memo. 2015- 157; Pounds v. Commissioner, T.C. Memo. 2011-202; Knight v. Commissioner, T.C. Memo. 2010-242; McDaniel v. Commissioner, T.C. Memo. 2009-137. “ 2019 T. C. Memo. 145, at p. 13.

And that’s what Judge Paris does, and I’ll wager one bucket of Modelò Negras that’s what her colleagues do, from now on. Invariably.

So we’ll never know if the burden of proof shifts to the intervenor, or stays with the requestor.

Takeaway- Intervenor, try your case as if IRS wasn’t there, because as far as Tax Court is concerned, they might just as well not be.




  1. Yes, the Modelò Negras. On the off chance of losing, I would find another wager.


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