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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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