alleging that the tax on an additional understatement of income in the amount
of $22,448 is also due to fraud. This additional understatement of income is
based on evidence establishing that it was part and parcel of the overall
diversion of funds to Mr. Burke. As such, it is part of the overall fraud.
We therefore sustain the increased addition to tax resulting from the
increased deficiency for 1986.
Alleged Joint Returns
The next issue for decision is whether Mrs. Burke is jointly liable for
the deficiencies in tax. This initially depends upon whether Mrs. Burke
tacitly consented to the filing of joint Federal income tax returns for the
years in issue. If we find that she did, then section 6013(d)(3), which
establishes that spouses who file a joint tax return are jointly and severally
liable for any tax that is due on the return, is applicable.
Mrs. Burke did not personally sign the alleged joint returns at issue.
However, this Court has recognized that a joint return is not necessarily
invalid because one spouse did not sign the return. Estate of Campbell v.
Commissioner, 56 T.C. 1, 12 (1971); Federbush v. Commissioner, 34 T.C. 740,
757 (1960), affd. per curiam 325 F.2d 1 (2d Cir. 1963); Heim v. Commissioner,
27 T.C. 270, 273 (1956), affd. 251 F.2d 44 (8th Cir. 1958). The issue turns
on whether the spouse "intended to file and be bound by the particular return
in question." Shea v. Commissioner, 780 F.2d 561, 567 (6th Cir. 1986), affg.
in part, revg. in part, and remanding T.C. Memo. 1984-310; accord Januschke v.
Commissioner, 48 T.C. 496, 500 (1967); Helfrich v. Commissioner, 25 T.C. 404,
407 (1955). Once it is established that one spouse did not sign the joint
return, the burden shifts to respondent to produce additional evidence of that
spouse's intent. O'Connor v. Commissioner, 412 F.2d 304, 309 (2d Cir. 1969),
affg. in part and revg. in part T.C. Memo. 1967-174; Estate of Krock v.
Commissioner, T.C. Memo. 1983-551.
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