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directed to address the issue of respondent’s motion to amend the
pleadings on brief but failed to do so.
Petitioners have identified no prejudice, and we fail to see
any. Mrs. Callahan’s 2002 taxable year has at all times been at
issue in this proceeding, and she was on notice by virtue of the
notice of deficiency issued to her for 1997 and 1998, as well as
respondent’s pretrial memorandum, that respondent intended to
allocate marital income to her on account of Wisconsin marital
property law. We conclude that amendment of the pleadings should
be allowed as sought by respondent.4
Wisconsin Marital Property Law
Under Wisconsin law, all income earned during marriage by
spouses domiciled in Wisconsin is presumed to be marital
property.5 Wis. Stat. Ann. sec. 766.31(4), 766.01(8) (West
2001). Marital property includes spousal wages, dividends,
interest, and economic benefits attributed to a spouse. Wis.
Stat. Ann. sec. 766.01(10); Park Bank-West v. Mueller, 444 N.W.2d
754, 759 (Wis. Ct. App. 1989). Each spouse has a present
4 While under Rule 142(a) respondent bears the burden of
proof with respect to Mrs. Callahan’s increased 2002 deficiency
resulting from his amendment of the pleadings, that burden is of
no consequence because petitioners have stipulated the income
giving rise to the deficiency.
5 In enacting the marital property statute, the Wisconsin
legislature intended that marital property be a form of community
property. See Wis. Stat. Ann. sec. 766.001(2) (West 2001). The
Commissioner treats it as such for Federal income tax purposes.
Rev. Rul. 87-13, 1987-1 C.B. 20.
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