- 39 -
already freely agreed to the settlement agreement and derived
benefits from it. See Smith v. Commissioner, 65 F.3d 37, 40-41
(5th Cir. 1995), affg. T.C. Memo. 1994-149; Joyce v. Year Invs.,
Inc., 196 N.E.2d 24, 26 (Ill. App. Ct. 1964). We therefore
conclude that such an order would not have been improper in the
terms of 1 Restatement, Contracts 2d, sec. 176 (1981). Thus,
neither under New Jersey law nor under some putative distinct
Federal common law was there duress. Inasmuch as the result is
the same whether we apply New Jersey law or some distinct Federal
rule, we need not decide which law governs the question of duress
for the purpose of determining the validity of a joint return.
Although Alice Berger attached a disclaimer to the 1988 Form
1040 return that she signed, she did not alter the preprinted
jurat in such a way as to invalidate the return as a joint
return. Cf. Sloan v. Commissioner, 102 T.C. 137 (1994), affd. 53
F.3d 799 (7th Cir. 1995). Thus, we hold that the 1988 return was
a valid joint return.11
11Because no party made the argument, we do not consider at
length whether the open-endedness of the joint and several
liability under a joint return rendered unenforceable Alice
Berger's agreement to sign a joint return. Suffice it to say
that, under the test of Town of Newton v. Rumery, 480 U.S. 386,
391-392 (1987), the relevant consideration would appear to be
whether any public harm resulting from forcing her to honor her
agreement would outweigh the benefits of doing so. Cf. United
States v. Northrop Corp., 59 F.3d 953, 958-963 (9th Cir. 1995).
Under that test, her agreement was clearly enforceable.
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