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taxpayer’s spouse intended a joint tax return even though the
taxpayer’s spouse did not sign the tax return. See Lane v.
Commissioner, 26 T.C. 405, 408-409 (1956).11
11Our analysis in Klayman v. Commissioner, T.C. Memo. 1979-
408, applies very well to the instant case, as follows:
Respondent’s second legal argument is related to
the first. Respondent contends that the doctrine of
tacit consent, pursuant to which we have upheld
determinations that a joint return is valid even if not
signed by both spouses, applies only in situations in
which respondent has determined that the return is a
joint return. Respondent contends that he can rely on
this doctrine to determine that an unsigned return is a
joint return, but that taxpayers cannot rely on a
theory of tacit consent to support their claim that an
unsigned return is a joint return. In essence,
respondent argues that a taxpayer cannot prove that one
spouse tacitly consented to the other spouse’s filing
of a joint return. In support of this position,
respondent relies on Hennen v. Commissioner, 35 T.C.
747 (1961), and Parker v. Commissioner, 37 T.C.M. 144,
47 P-H Memo. T.C. par. 78,023 (1978).
Again, respondent’s position is without merit.
Although Hennen v. Commissioner, supra, does contain
language to the effect that the presumption of tacit
consent has been applied only upon a determination by
respondent, we also stated in Hennen that the tacit
consent presumption is only an explanation of the basis
for respondent’s determination. We held in Hennen that
the taxpayer cannot rely on a presumption of tacit
consent if respondent determines that no such consent
existed. Rather, in such situations the taxpayer must
prove that tacit consent existed. Similarly, in Parker
v. Commissioner, supra, we held that the presumption of
tacit consent was inapplicable when respondent
determined that a return was not joint, but the
taxpayers were able to prove that one spouse tacitly
consented to the filing of joint returns by the other.
Indeed, Parker v. Commissioner supports a conclusion
directly contradictory to the position respondent has
adopted here. See also Lane v. Commissioner, 26 T.C.
(continued...)
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