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undivided one-half interest in the other spouse’s income earned
during the marriage. Wis. Stat. Ann. sec. 766.31(1)-(2); see
Gerczak v. Estate of Gerczak, 702 N.W.2d 72, 78 (Wis. Ct. App.
2005); Park Bank-West v. Mueller, supra. Spouses may reclassify
marital property as individual property by, inter alia, a marital
property agreement. Wis. Stat. Ann. sec. 766.31(10).
Petitioners were married during the years at issue and
maintained a residence in Wisconsin. We are therefore satisfied
that they were domiciled in Wisconsin; they have not maintained
otherwise. See Wisconsin v. Corey J.G., 572 N.W.2d 845, 853
(Wis. 1998). Petitioners have not attempted to reclassify their
marital property as individual property. Accordingly, they each
hold an undivided one-half interest in all items of income at
issue in this case.
When a husband and wife who are domiciled in a community
property State file separate returns or no returns, any marital
property income must be split between them.6 United States v.
Mitchell, 403 U.S. 190, 196 (1971); Hopkins v. Bacon, 282 U.S.
122, 127 (1930); Poe v. Seaborn, 282 U.S. 101 (1930); Johnson v.
Commissioner, 72 T.C. 340, 343 (1979). Because all items of
income at issue in this case are marital property and petitioners
6 When a separate return has been filed, married taxpayers
forfeit their right to file a joint return for the relevant year
upon the issuance of a notice of deficiency to, and the filing of
a petition in this Court by, either spouse. Sec. 6013(b)(2)(B).
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