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the pleadings, affidavits, and the parties' memoranda in support
of their motions do not appear to be in dispute. We treat these
facts as true only for purpose of ruling on the motions.
Background
Petitioner and his former spouse, Susan Olpin (now known as
Susan Stroup but hereafter referred to as Mrs. Olpin), were
legally married throughout 1995 and were divorced on September 5,
1996. Petitioner and Mrs. Olpin filed and obtained two
extensions of time to file their 1995 return.1 On October 15,
1996, a Form 1040 was sent to the Internal Revenue Service (IRS)
which petitioner argues is a joint 1995 Federal income tax return
(the purported return). The purported return was not signed by
either petitioner or Mrs. Olpin but was signed by their tax
preparer. Respondent initially processed the purported return as
a joint Federal income tax return for petitioner and Mrs. Olpin
for the 1995 tax year, and petitioner made payments totaling
$4,560.93 to satisfy the liability reflected on the purported
return.
1 Respondent's answer to petitioner's petition admitted
petitioner's allegation that he and his ex-wife obtained an
extension for filing for the 1995 tax year on Form 4868 and an
additional extension by filing Form 2688. Although respondent
denied this allegation in his response to petitioner's motion for
summary judgment, respondent has not sought to amend his answer
admitting this fact, and respondent's memorandum in support of
respondent's motion for summary judgment acknowledges that time
extensions were requested by petitioner and granted by the IRS.
See Rules 36, 41.
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