Peter Spuler, Jr. - Page 10

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          normally and frequently taken for consent even in tax cases”).              
          Tacit consent is evident when the nonsigning spouse accepts the             
          benefits of a joint return.  Heim v. Commissioner, 27 T.C. 270,             
          274 (1956), affd. 251 F.2d 44 (8th Cir. 1958).                              
               In the present case, petitioner was a married individual               
          during the 1997 taxable year.  Petitioner and Ms. Spuler                    
          separated in December 1997; however, the separation was not                 
          pursuant to a decree of divorce or of separate maintenance.                 
          Before the divorce in May 1999, Ms. Spuler may have at some point           
          intended to file a joint return for the 1997 taxable year.  But             
          by late 1998, before petitioner filed the 1997 return on May 13,            
          1999, Ms. Spuler did not intend the 1997 return to be a joint               
          return.  Indeed, she had already filed a separate return in                 
          October 1998.  We find that she did not sign the 1997 return and            
          that she did not consent expressly or tacitly to petitioner’s               
          signing the 1997 return on her behalf.  Moreover, the record does           
          not contain any credible evidence that she accepted or enjoyed              
          any benefits of a joint return; indeed, petitioner was the one              
          who endorsed the refund check with Ms. Spuler’s name.  With these           
          factors in mind, we conclude that petitioner was not entitled to            
          a filing status of “married filing joint return” for the 1997               
          taxable year.  Thus, we sustain respondent on this issue.                   









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