Michael Vetrano and Patricia Vetrano - Page 19




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             divorce statute.  See N.J. Stat. Ann. sec. 2A:34-2(d) (West              
             2000).                                                                   
                  The language of section 6015(c)(3)(A)(i) makes it                   
             clear that this eligibility requirement must be met as of                
             the date the election is filed.  Section 6015(c)(3)(A)                   
             (i)(I) states that the electing spouse must be divorced or               
             legally separated "at the time such election is filed" and               
             section 6015(c)(3)(A)(i)(II) states that the electing                    
             spouse must not have been a member of the same household                 
             with the nonelecting spouse "during the 12-month period                  
             ending on the date such election is filed".  If the                      
             taxpayer does not meet one of those requirements as of the               
             date of the election, then the taxpayer is not eligible to               
             elect relief under section 6015(c).  See sec. 6015(c)(3)                 
             (A)(i).  In that event, it would appear that the taxpayer                
             must file a second election when he or she meets the                     
             requirements of section 6015(c)(3)(A)(i).                                
                  There is no basis in the record of this case for the                
             statement in petitioners' posttrial brief that Mrs. Vetrano              
             was legally separated from Mr. Vetrano at the time                       
             petitioner's posttrial brief was filed and her election                  
             under section 6015(c) was made.  Furthermore, there is no                
             evidence to show that Mrs. Vetrano was no longer married to              
             Mr. Vetrano on the date of her election, nor is there                    






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