Carolyn Webb - Page 12

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          which they maintained for the entire time they were absent from             
          California.                                                                 
               The fact that petitioners lived apart for 1989 and part of             
          1990 does not affect the allocation of income under California              
          law, unless they separated with an intent to end their marriage.            
          Sidebotham v. Robison, supra.  Based on the record, there is no             
          evidence of marital discord or separation, which would support              
          the contention that petitioner's income is not attributable to              
          Carolyn Webb.  In fact, at trial, petitioner testified that he              
          and his wife have been happily married for 34 years.                        
               We therefore find that petitioners did not live separate and           
          apart with the intent of ending their marriage, nor did they form           
          an intent to move outside California permanently.  Thus, they               
          remained domiciled in California during the years in issue.                 
          Accordingly, petitioners are subject to California community                
          property law.                                                               
               Given this fact, we must now determine whether Carolyn Webb            
          is liable for income tax on 50 percent of petitioner's earned and           
          unearned income for 1990, 1991, and 1992.  Cal. Civ. Code sec.              
          5105 (West 1983); United States v. Malcolm, supra.                          
               Earnings of a husband during the marriage are presumed to be           
          community property.  People v. Lockett, supra.  Here, petitioners           
          were married long before the years in issue.  The burden of proof           
          is on petitioners to establish that such earnings are separate.             
          See v. See, supra.  However, Carolyn Webb did not introduce any             



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