Charles J. Dugan - Page 10

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          Rather, respondent argues that petitioner is not entitled to                
          claim joint filing status pursuant to section 6013(b)(2)(C).                
               Section 6013(b)(2) permits the election of a joint return,             
          after a separate return has been filed, under specified                     
          circumstances.  Section 6013(b)(2)(C) precludes the filing of a             
          joint return where a separate return has been filed, a notice of            
          deficiency has been mailed to either spouse, and a petition has             
          been timely filed with the Court.8  Millsap v. Commissioner, 91             
          T.C. 926, 929 (1988); Jacobson v. Commissioner, 73 T.C. 610, 614            
          (1979).                                                                     
               On brief respondent argues that section 6013(b)(2)(C)                  
          applies since the election to file a joint return was made after            
          a notice of deficiency was mailed to petitioner and after a                 
          petition was filed with this Court.  Respondent's argument misses           
          the mark.  In submitting a purported copy of the 1991 return to             
          respondent's Appeals Office on April 15, 1994, it is not clear              
          that petitioner intended to "file" the 1991 return on that date.            


          8         SEC. 6013(b)(2).  Limitations for making of                       
               election.--The election provided for in paragraph (1)                  
               may not be made--                                                      
                         * * *                                                        
                         (C) after there has been mailed to                           
                    either spouse, with respect to such taxable                       
                    year, a notice of deficiency under section                        
                    6212, if the spouse, as to such notice, files                     
                    a petition with the Tax Court within the time                     
                    prescribed in section 6213; * * *                                 




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