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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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