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separated and were maintaining separate residences.” Mary
testified that (1) after she and petitioner had separated,
petitioner continued to pay the bills and file the tax returns as
he had done theretofore, and (2) this pattern did not change
until August 1997. Thus, on the facts of the instant case, the
separation did not affect the way Mary and petitioner carried out
their obligations to file a tax return for 1994.
(3)--
Finally, the Tax Court has stated that “so-called
tacit consent rule has been applied * * * only in cases
in which respondent was seeking to impose tax liability
upon a spouse who had not signed the return, respondent
having determined that there was consent to a joint
return despite the missing signature.” Hennen v.
Commissioner, 35 T.C. 747 (1961).
The Court concluded:
[W]e cannot agree that tacit consent can be
applied where respondent has made a contrary
determination, as here. Tacit consent is
only an explanation of the basis for
respondent’s determination that the absence
of one signature is not fatal to a joint
return, and has no application unless
respondent has made such a determination.
The tacit consent rule is not separable from
the correctness imputed to respondent’s
finding of a joint return in cases where one
spouse does not sign.
Id. at 749.
Firstly, petitioner has not here invoked the “tacit consent
rule”, and so should not be charged with the limitations of that
rule. Secondly, the normal burden of proof rules--not some
extraordinary burden--apply when a taxpayer contends that the
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