Page:United States Statutes at Large Volume 112 Part 1.djvu/762

 112 STAT. 736 PUBLIC LAW 105-206-^ULY 22, 1998 Deadline. "(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.— " (A) INDIVIDUALS ELIGIBLE TO MAKE ELECTION.— "(i) IN GENERAL.— An individual shall only be eligible to elect the application of this subsection if— "(I) at the time such election is filed, such individual is no longer married to, or is legally separated from, the individual with whom such individual filed the joint return to which the election relates; or "(II) such individual was not a member of the same household as the individual with whom such joint return was filed at any time during the 12-month period ending on the date such election is filed. "(ii) CERTAIN TAXPAYERS INELIGIBLE TO ELECT. — If the Secretary demonstrates that assets were transferred between individuals filing a joint return as part of a fraudulent scheme by such individuals, an election under this subsection by either individual shall be invalid (and section 6013(d)(3) shall apply to the joint return). "(B) TIME FOR ELECTION.— An election under this subsection for any taxable year shall be made not later than 2 years after the date on which the Secretary has begun collection activities with respect to the individual making the election. " (C) ELECTION NOT VALID WITH RESPECT TO CERTAIN DEFICIENCIES.— 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). This subparagraph shall not apply where the individual with actual knowledge establishes that such individual signed the return under duress. "(4) LLVBILITY INCREASED BY REASON OF TRANSFERS OF PROPERTY TO AVOID TAX. — "(A) IN GENERAL. — Notwithstanding any other provision of this subsection, the portion of the deficiency for which the individual electing the application of this subsection is liable (without regard to this paragraph) shall be increased by the value of any disqualified asset transferred to the individued. "(B) DISQUALIFIED ASSET.— For purposes of this paragraph— "(i) IN GENERAL.— The term 'disquahfied asset' means any property or right to property transferred to an individual msiking the election under this subsection with respect to a joint return by the other

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