Daniel C. Noonan - Page 10

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          spouse is missing, if both spouses intended to file a joint                 
          return.  Estate of Campbell v. Commissioner, 56 T.C. 1, 12-14               
          (1971); Federbush v. Commissioner, 34 T.C. 740, 754-758 (1960),             
          affd. 325 F.2d 1 (2d Cir. 1963); Hoyle v. Commissioner, T.C.                
          Memo. 1994-592.  Therefore, the resolution of this issue depends            
          upon whether Mrs. Noonan intended that the 1988 return filed by             
          petitioner constitute their joint return.4                                  
               It is clear that Mrs. Noonan, at all times up until sometime           
          in 1992 at the earliest, intended to file a joint Federal return            
          with petitioner for 1988.  It was so agreed in the                          
          indemnification agreement, the joint return was prepared and                
          signed by Mrs. Noonan, and a copy was filed with the joint                  
          California return.  Petitioner had attempted to get the law firm            
          or Mrs. Noonan to file the return when he was financially able,             
          but was unsuccessful in getting any cooperation.                            
               Petitioner insists that Mrs. Noonan was uncooperative in               
          locating the completed and executed 1988 return and that she                
          refused to sign the May return (or submit the original 1988                 
          return) due to their bitter divorce.  We have previously held               

          4  We do not consider sec. 6013(b) to affect this issue.                    
          There does not seem to be any valid reason why Ms. Burton was               
          unable to file the May return; respondent had no difficulty                 
          filing the identical January return.  Mrs. Noonan was not                   
          obligated to file a 1988 return, and the document she submitted             
          reflected nothing--no income, liability, withholding, nor                   
          credits.  Nevertheless, if relevant to consideration of this                
          issue, we deem the May return to have been petitioner's return,             
          and therefore sec. 6013(b)(2) does not control.                             

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