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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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