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Respondent contends that Ms. Spuler did not intend to file a
joint return for the 1997 taxable year because (1) she filed a
separate return for the same taxable year before petitioner’s
filing of the 1997 return and (2) she did not sign the 1997
return.
Filing Status
As the tax returns for 1997 and 1998 were filed after July
22, 1998, section 7491(a) is applicable. Petitioner did not
assert nor present evidence or argument that he satisfied the
requirements of section 7491(a). Accordingly, the burden of
proof with respect to relevant factual issues has not shifted to
respondent.
Every married individual may make a single return jointly
with his or her spouse under section 6013 or may make a separate
return. See sec. 1(a), (d). An individual shall not be
considered married if, at the end of the taxable year, such
individual is legally separated from his or her spouse under a
decree of divorce or of separate maintenance. Sec. 7703(a).
Married filing jointly status does not apply to a Federal
income tax return unless both spouses intend to make a joint
return. Jones v. Commissioner, 327 F.2d 98, 101 (4th Cir. 1964),
revg. 39 T.C. 734 (1963). The question whether both spouses
intended to file a joint return is a factual one. Id.
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