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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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