Daniel F. Layman, III - Page 10




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          is considered community property.  See Goodell v. Koch, 282 U.S.            
          118 (1930); Beall v. Commissioner, 82 T.C. 70 (1984).  Under the            
          law of Arizona, the physical separation of petitioner and Peggy             
          Layman did not alter the community character of petitioner's                
          post-separation earnings in 1991, 1992, and 1993.  Consequently,            
          since petitioner and Peggy Layman were not legally separated, the           
          community property laws of Arizona apply to petitioner's earnings           
          for the taxable years 1991, 1992, and 1993.                                 
          II. Application of Section 66(b)                                            
               Section 66(b) authorizes the Commissioner to disallow the              
          benefits of any community property law to a taxpayer with respect           
          to any income if (1) the taxpayer acted as if solely entitled to            
          such income, and (2) the taxpayer failed to notify the taxpayer's           
          spouse of the nature and amount of such income before the due               
          date for filing the return.  See Mischel v. Commissioner, T.C.              
          Memo. 1997-350; Schramm v. Commissioner, T.C. Memo. 1991-523,               
          affd. without published opinion 988 F.2d 121 (9th Cir. 1993).               
               Where a notice of deficiency fails to describe the basis on            
          which the Commissioner relies to support a deficiency                       
          determination and that basis requires the presentation of                   
          evidence that is different from that which would be necessary to            
          resolve the determinations that were described in the notice of             
          deficiency, the Commissioner will bear the burden of proof                  








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