Daniel C. Noonan - Page 13

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          Noonan's hands, which, in view of their animosity toward each               
          other, would not have been a reasonable thing to do.  Mr. Pearson           
          was no longer at the law firm, and payment to the law firm would            
          not be reasonable, inasmuch as the original 1988 tax return was             
          no longer at the law firm.  Petitioner had to deal with Mrs.                
          Noonan.  He wrote to her, advised that he was ready and able to             
          pay the tax (which he was), and requested the return.                       
          Apparently, she first stated she could not find it and then                 
          refused to turn it over.  Under these circumstances, petitioner             
          complied with the terms of the indemnification agreement.  His              
          tender (offer to pay the tax) was unreasonably rejected, and,               
          therefore, the condition precedent has been satisfied.                      
               Accordingly, we need not consider whether to attribute to              
          Mrs. Noonan an intent to file jointly based upon the inclusion of           
          her share of community income in the return submitted by                    
          petitioner, where de minimis community income may have been                 
          included in the return.  See Januschke v. Commissioner, 48 T.C.             
          496 (1967); Heim v. Commissioner, 27 T.C. 270 (1956), affd. 251             
          F.2d 44 (8th Cir. 1958).                                                    

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