- 6 -
petitioner's correct filing status was "married filing separate"
rather than "single".
Respondent's assertion in the amended answer clearly
increased the original deficiency. In addition, the new
assertion requires the presentation of different evidence
regarding petitioner's marital status. Accordingly, we find that
the issue of petitioner's filing status is a new matter, in
respect of which the burden of proof falls on respondent.
The determination of whether an individual is married shall
be made as of the close of the taxable year. Sec. 7703(a)(1). A
person who is married may file a joint return with his or her
spouse or may file separately; however, a married person may not
file as an unmarried individual. Sec. 1(a), (c), and (d).
Marital status for Federal tax purposes is defined by State law.
Lee v. Commissioner, 64 T.C. 552, 556-559 (1975), affd. 550 F.2d
1201 (9th Cir. 1977); Gersten v. Commissioner, 28 T.C. 756, 770
(1957), affd. in part and remanded in part 267 F.2d 195 (9th Cir.
1959). Thus, we must look to California law to determine whether
petitioner was married as of the close of the taxable year 1989.
Petitioner and Mr. Maynard were married on May 23, 1985, and
the marriage certificate was filed on May 24, 1985. As of the
close of 1989, petitioner and Mr. Maynard were residing together
and were holding themselves out as being married. On March 2,
1994, however, petitioner filed a petition in the Superior Court
in El Dorado County, California, requesting an annulment of a
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011