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petitioner Vivian Burke did not tacitly consent to the filing of
joint Federal income tax returns and, therefore, was not jointly
and severally liable for the taxes in issue. We now consider
petitioner1 Vivian Burke's Motion for an Award of Litigation
Costs pursuant to section 74302 and Rule 231.
Background3
In May 1987, the Suffolk County District Attorney's Office
indicted John Burke on two counts of grand larceny for embezzling
more than $1.2 million in insurance premiums from U.S. Life
Insurance Co. between 1985 and 1987. Pursuant to a plea
agreement, Mr. Burke pled guilty to Grand Larceny 4, a felony,
for his failure to remit sales taxes, which were owing from a
restaurant owned by Mr. Burke, to the New York State Department
of Taxation and Finance.
1Hereinafter, all references to petitioner are to petitioner
Vivian Burke.
2The petition in this case was filed on Aug. 30, 1993;
therefore, the motion has been considered under sec. 7430 as
amended by sec. 6239(a) of the Technical and Miscellaneous
Revenue Act of 1988, Pub. L. 100-647, 102 Stat. 3342, 3743-3744,
effective for all civil tax proceedings commenced after Nov. 10,
1988. All Rule references are to the Tax Court Rules of Practice
and Procedure.
3Neither party has requested an evidentiary hearing
regarding the Motion for an Award of Litigation Costs. The
relevant facts are taken from the parties' memoranda and our
opinion in Burke v. Commissioner, T.C. Memo. 1995-608.
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