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right to a refund or credit. We must make the determination
regarding the taxpayer’s right to a refund or credit without
regard to community property law. Sec. 6015(a).
If community property law is disregarded and if the taxpayer
can establish that he or she has satisfied the refund
requirements set forth in sections 6511 and 6512, it seems
logical to me that we must trace the source of the tax payments
to determine the amount of the refund. If the payments are
traced to income earned by one or both spouses, the income would
be attributed to the person who earned it. If the payments are
traced to the proceeds from the sale of property and the property
is subject to titling, then that property would be allocated in
accordance with title and applicable State law. For example,
under California law, every interest created in favor of several
persons in their own right is an interest in common, unless
acquired by them in partnership for partnership purposes,
declared in its creation to be a joint interest, or acquired as
community property.2 Cal. Civ. Code sec. 686 (West 1982). When
2A community property interest is one form of joint
ownership that is recognized under California law. See Cal. Fam.
Code sec. 750 (West 2004). The other forms of joint ownership
are joint tenancies, tenancies in common, and community property
with a right of survivorship. Id. Under California law,
property owned jointly by a husband and wife can take any of the
above forms as long as the legal requirements are met. In
addition, a husband and wife, even if they are still married,
can sever the community and convert community property into other
forms of joint property.
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