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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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