Lloyd E. Dawson, Jr. - Page 27

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          tax attributable to the funds Ms. Dawson embezzled from her                 
          employers during that year.                                                 
          Community Income Issue                                                      
               The next issue we shall consider is whether any of the funds           
          embezzled by Ms. Dawson during 1989 are taxable to petitioner.10            
          Petitioner is taxable on the funds to the extent of his ownership           
          interest under Texas law.  United States v. Mitchell, 403 U.S.              
          190, 194-197 (1971), and cases cited therein.  Texas law provides           
          for a community system of property rights of spouses.  Tex.                 
          Const. art. 16, sec. 15; Tex. Fam. Code Ann. sec. 5.01 (West                
          1993).  Under that system, each spouse has a vested interest in,            
          and is the owner of, one-half of all such property.  Johnson v.             
          Commissioner, 72 T.C. 340, 343 (1979).  Consequently, a spouse is           
          liable for the Federal income tax on the portion of any income              
          that is community property.  Id.   A spouse, however, has no                
          ownership interest in, and is not taxable on, income that is the            
          separate property of the other spouse.  Id.  Our inquiry                    
          accordingly focuses on whether the $95,072 embezzled by Ms.                 


          10                                                                          
               Because petitioner filed a separate tax return from Ms.                
          Dawson for 1989, petitioner concedes that he is not eligible for            
          relief as an innocent spouse under sec. 6013(e).  Petitioner,               
          however, does not contend, and we do not consider whether, he               
          qualifies as an innocent spouse pursuant to sec. 66(c), under               
          which a taxpayer who does not file a joint return may be relieved           
          of liability for tax on items of community income attributable to           
          the taxpayer’s spouse.  See Roberts v. Commissioner, 860 F.2d               
          1235, 1238-1239 (5th Cir. 1988), affg. T.C. Memo. 1987-391.                 





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