- 32 -
We conclude, on the preponderance of the evidence, that the
1994 tax return that petitioner filed on October 16, 1995, was
the joint tax return of petitioner and Mary, and that petitioner
is entitled to be treated for 1994 as married filing jointly.
Our attention has been drawn to statements in Olpin v.
Commissioner, 237 F.3d 1263, 1267 (10th Cir. 2001), revg. T.C.
Memo. 1999-426, which, if applied to the instant case, would
appear to result in a conclusion that Mary’s intentions as to the
tax return may be irrelevant. Both sides in the instant case
appear to have accepted that petitioner intended to file a joint
tax return but that the tax return would not be treated as joint
unless Mary also intended it to be joint. Our analysis also has
been focused on what the record shows as to Mary’s intent. We
conclude that the result we have reached on the analysis we used
--that petitioner’s 1994 tax filing status was married filing
jointly--is not different from the result that would be reached
under the approach of the Court of Appeals for the Tenth Circuit
11(...continued)
405 (1956) (taxpayer proved that an unsigned return was
a joint return).6 In this case, respondent does not
have the benefit of the presumption of correctness.
Compare Hennen v. Commissioner, supra. However, in
reaching our conclusion that petitioners filed joint
returns, we have not relied on a presumption of tacit
consent; petitioners proved that they intended to file
joint returns.
6 Respondent’s position here contradicts his previous
acquiescence in our decision in Lane v. Commissioner, supra.
See 1956-2 C.B. 7.
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