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evidence to negate a finding that petitioner's earnings are
community property.
With respect to petitioner's unearned income, since the
source property is presumed to be community property, and Carolyn
Webb has failed to introduce evidence to the contrary, the income
from such property is also community property. Estate of Frye v.
Commissioner, 44 B.T.A. 835 (1941); In re Estate of Miles, 72
Cal. App. 2d 336, 341 (1945).
On brief, respondent acknowledges that for 1992, the notice
of deficiency mailed to petitioner failed to include $16,050 in
rents earned by petitioner. However, respondent included this
amount in the proposed stipulation, which was sent to petitioner
and deemed admitted pursuant to Rules 91(f)(3) and 123(b). Thus,
we sustain respondent's determination that the $16,050 is
includable in petitioner's income for 1992. Respondent does not
seek to hold Carolyn Webb liable for tax on one half of the
$16,050, because she does not seek an increased deficiency
against Carolyn Webb for 1992. Petitioner did not object to this
allocation. Accordingly, we sustain respondent's determination
that Carolyn Webb is liable for income tax on one half of all the
earned and unearned income in petitioner's name for 1990, 1991,
and 1992 to the extent of the income asserted against her by
respondent in the notice of deficiency.7 With respect to
7 We have considered sua sponte whether sec. 66(a) applies
and hold that it does not. Carolyn Webb does not meet the
(continued...)
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