I’m not picking on Judge Adam B. (“Sport”) Landy for ducking the perennial high-hanging fruit on the BoP tree. The last place to decide a major trial issue is in a small-claimer like Carl David Lucas and Jasmine Lucas, T. C. Sum. Op-. 2024-22, filed 10/9/24.

It’s easier to go with preponderance-of-evidence, and slide around Section 7491, when one spouse and IRS agree on innocent spousery, but the nonrequesting spouse won’t play.

“While a requesting spouse generally bears the burden of proving she is entitled to relief, it is an open question whether the nonrequesting spouse now bears the burden of proof when the Commissioner and the requesting spouse are aligned on the decision to grant relief. See Kraszewska v. Commissioner, T.C. Memo. 2024-26, at *6–7 (citing Stergios v. Commissioner, T.C. Memo. 2009-15, 2009 WL 151485, at *4). We decline to answer this question, and instead, we decide the issue of whether Ms. Lucas is entitled to innocent spouse relief by a preponderance of the evidence. See id.” T. C. Sum. Op. 2024-24, at p. 7.

Judge Sport Landy finds that Jasmine knew all about the unreported income, as she prepared the 1040 and Carl gave her all his info. No innocence for her. So ultimately, does BoP matter in innocent spousery?