- 5 -
and (d), refund any balance to such person. [Emphasis
added.]
It has long been recognized by this Court that a husband and wife
are treated as separate taxpayers even where they have filed a
joint return. Rodney v. Commissioner, 53 T.C. 287, 307 (1969).
Since petitioners must be treated as separate taxpayers, and
since their notices of deficiency were issued at different times,
we must determine separately each petitioner's eligibility for a
refund of the overpayment.
1. Barry
"Where spouses claim a refund under a joint return, the
refund is divided between the spouses, with each receiving a
percentage of the refund equivalent to his or her proportion of
the withheld tax payments." Gordon v. United States, 757 F.2d
1157, 1160 (11th Cir. 1985); Gens v. United States, 230 Ct. Cl.
42, 673 F.2d 366 (1982); see also Rosen v. United States, 397 F.
Supp. 342, 344 (E.D. Pa. 1975). Rev. Rul. 80-7, 1980-1 C.B. 296,
as amplified by Rev. Rul. 85-70, 1985-1 C.B. 361, sets out a
formula for determining each spouse's share of the overpayment.
The parties have stipulated that no taxes were withheld from
Barry's wages for 1991, and that all of the taxes responsible for
the overpayment were withheld from Shelley's income. Since all
of the taxes were withheld from her income, Barry has no interest
in any portion of the overpayment and thus is not entitled to a
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