Marcia S. Green - Page 14

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          income tax attributable to the portion of the jury award she                
          incorrectly excluded from income.  Accordingly, we conclude that            
          the accuracy-related penalty applies to that portion.                       
          V.   Whether The Jury Award Is Community Property                           
               We finally consider whether the jury award is community                
          property under California law, an issue that respondent raised              
          for the first time after petitioner filed the petition.  Married            
          persons residing in California generally have a one-half interest           
          in all property acquired during their marriage.  Cal. Fam. Code             
          sec. 760 (West 2004).  Spouses residing in California filing                
          separate returns generally must each report on the returns one-             
          half of all income the married couple earned during the year.               
          United States v. Mitchell, 403 U.S. 190, 196-197 (1971).                    
               A legal award is community property if it is in satisfaction           
          of a personal injury claim and if the cause of action arose                 
          during the marriage.  Cal. Fam. Code sec. 780 (West 2006).  A               
          legal award is separate property only if it is in satisfaction of           
          a personal injury claim and if the cause of action arose after              
          the spouses were separated or divorced or while they were living            
          apart.  Cal. Fam. Code sec. 781 (West 2006).  A personal injury             
          claim arises from any tortious injury to a protected personal               
          interest.  In re Marriage of Klug, 130 Cal. App. 4th 1389, 1397             
          n.3 (Ct. App. 2005) (finding legal malpractice a personal injury            
          claim).                                                                     






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