John J. Burke and Vivian Burke - Page 23

                  Respondent relies primarily on petitioners' long history of joint filing              
            and Mrs. Burke's reliance on her husband to handle the couple's financial                   
            affairs.  Cf. Estate of Campbell v. Commissioner, supra at 13; Federbush v.                 
            Commissioner, supra at 756-757.  Indeed, Mrs. Burke concedes on brief that                  

                  [Mr.] Burke was responsible for the preparation of any necessary                      
                  tax returns, and that Vivian was not involved in the preparation                      
                  process; that Vivian signed and consented to the filing of the                        
                  Prior Year Returns; and that Vivian signed and consented to the                       
                  filing of Subsequent Year Returns.  [Fn. ref. omitted.]                               

            However, Mrs. Burke contends, and we agree, that a pattern of joint return                  
            filing is only one factor to consider in reaching a decision concerning her                 
            intent.  Lomanno v. Commissioner, T.C. Memo. 1994-426.                                      
                  Mrs. Burke argues that the outcome in this case is controlled by our                  
            decision in Helfrich v. Commissioner, supra.  In Helfrich v. Commissioner, 25               
            T.C. at 407, we held that the taxpayer did not have the requisite intent to                 
            file a joint return with her spouse because                                                 

                  The signature * * * on the return is not hers. Furthermore, she                       
                  did not authorize anyone to sign her name to the return; she did                      
                  not know the return had been filed; she did not participate in its                    
                  preparation; and the first time she saw it was in the collector's                     
                  office * * *                                                                          

                  Mrs. Burke was not aware that her husband filed returns for the years in              
            issue on March 29, 1991, and had she been asked to sign these returns or                    
            consent to joint filing status, she would have refused.  Numerous reasons                   
            existed for Mrs. Burke not to consent to the filing of joint returns.  Mrs.                 
            Burke was not personally required to file any returns for the years at issue.               
            The years at issue were turbulent ones for petitioners.  Mr. Burke was a heavy              
            gambler, and he was abusing cocaine.  Mrs. Burke knew that Mr. Burke had been               
            indicted for embezzlement during 1987, that he had pleaded guilty to Grand                  
            Larceny 4, a felony in New York, and that U.S. Life had obtained a default                  
            judgment against him for the premiums he diverted.  The returns in question                 








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