Carolyn Webb - Page 9

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               California is a community property State.  Therefore, we               
          look to California law to determine whether income is community             
          property, or whether it is separate property.  United States v.             
          Mitchell, supra; Lucia v. Commissioner, T.C. Memo. 1991-77, affd.           
          without published opinion 962 F.2d 14 (9th Cir. 1992).  The term            
          "community property", pursuant to California law, is generally              
          defined as "property acquired by husband and wife, or either,               
          during marriage, when not acquired as the separate property of              
          either."  Cal. Civ. Code sec. 687. (West 1982); Lucia v.                    
          Commissioner, supra.  Under California law, absent a contrary               
          agreement, each spouse has the right to one half of all community           
          income from the moment it is acquired and therefore is liable for           
          the Federal income tax on one half of such amount.  Cal. Civ.               
          Code sec. 5105. (West 1983); United States v. Malcolm, 282 U.S.             
          792 (1931).                                                                 
               The character of property as separate or community is                  
          determined at the time of acquisition.  See v. See, 64 Cal. 2d              
          778, 783-784 (1966).  Property acquired by purchase after                   
          marriage is presumed to be community property.  Id.  Furthermore,           
          earnings of a husband acquired during marriage are presumed to be           
          community property.  People v. Lockett, 25 Cal. App. 3d 433, 439            
          (1972).  With respect to unearned income, where the source                  
          property is presumed to be community property, and no evidence is           
          introduced to rebut such presumption, then the income from such             
          property is presumed community income.  Estate of Frye v.                   



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