Maria Sofia Benitez - Page 5

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          tests.  However, section 32(d) continues and provides that “in              
          the case of an individual who is married (within the meaning of             
          section 7703), this section shall apply only if a joint return is           
          filed for the taxable year under section 6013.”                             
               According to section 7703(a)(1), “the determination of                 
          whether an individual is married shall be made as of the close of           
          his [or her] taxable year”.  As of December 31, 1997, the end of            
          her taxable year, petitioner and Mr. Aviles were married and                
          living together with their three children.  Section 6013 allows a           
          husband and wife to file a single joint return even though one of           
          the spouses has neither gross income nor deductions.  Section               
          6013(b) provides that in certain circumstances a joint return may           
          be filed after the filing of a separate return.                             
               However, section 6013(b)(2) provides certain limitations.  A           
          joint return cannot be made after the expiration of 3 years from            
          the last date prescribed by law for filing the return for the               
          taxable year.  A joint return cannot be made after there has been           
          mailed to either spouse, with respect to the taxable year, a                
          notice of deficiency pursuant to section 6212, and the spouse               
          receiving such notice files a petition to the Tax Court within              
          the time prescribed in section 6213.  Sec. 6013(b)(2)(A) and (B).           
               Here both limitations apply.  Petitioner filed her income              
          tax return for 1997 on or before April 15, 1998.  The 3-year                
          period within which to file a joint return expired on April 15,             

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