Marty M. Morin and Marilee D. Morin - Page 5




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               We must next decide whether this income is community                   
          property income.2  Under Washington law, with certain exceptions,           
          all property (including compensation earned by a spouse) acquired           
          after marriage is presumed community property and treated as                
          acquired or earned by each spouse.  See Wash. Rev. Code Ann.                
          secs. 26.16.010 through 26.16.030 (West 1997); Zielasko v.                  
          Commissioner, T.C. Memo. 1993-177.  Community property income is            
          attributable 50 percent to each spouse.  See Poe v. Seaborn, 282            
          U.S. 101 (1930).  Petitioners presented no evidence demonstrating           
          that Mr. Morin's compensation, the prizes, or the retirement                
          distribution are not community property.  Therefore, we conclude            
          that under Washington law this income is community property and             
          must be allocated 50 percent to each petitioner.  See also Rule             
          142(a).                                                                     
               Respondent also determined that the retirement distribution            
          is subject to an additional tax pursuant to section 72(t).                  


               2  Respondent, in the separate notices of deficiency sent to           
          Mr. Morin and Mrs. Morin, determined:  (1) Mr. Morin is taxable             
          on 100 percent of (a) the compensation he received from Les Morin           
          Subaru, (b) the retirement distribution he received from Common             
          Sense Shareholder Services, and (c) the prizes he received from             
          Subaru of America, Inc.; (2) Mrs. Morin is taxable on 100 percent           
          of the gain from her sale of real property; (3) Mr. Morin is                
          taxable on 50 percent of the gain received by Mrs. Morin; and (4)           
          Mrs. Morin is taxable on 50 percent of the net income earned by             
          Mr. Morin.                                                                  
               Respondent took these inconsistent positions to protect                
          respondent's rights under Washington law because petitioners were           
          uncooperative married nonfilers.                                            




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