Joyce Primrose Lane v. Comm'r of Internal Revenue, Docket No. 51294.

• Decision Date: 31 May 1956
• Docket Number: Docket No. 51294.
• Citation: 26 T.C. 405
• Parties: JOYCE PRIMROSE LANE (FORMERLY JOYCE PRIMROSE BOOZER), PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Tax Court

26 T.C. 405

JOYCE PRIMROSE LANE (FORMERLY JOYCE PRIMROSE BOOZER), PETITIONER,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 51294.

Tax Court of the United States.

Filed May 31, 1956.

Dermot R. Long, Esq., for the petitioner.

Arthur Clark, Jr., Esq., for the respondent.

Petitioner and Edward Francis Boozer executed a property settlement agreement in November 1950 which provided, in part, that he would receive $12,500 in lieu of all claims for support and maintenance from petitioner and agreed with petitioner that he would sign a joint Federal income tax return with her for the year 1950. Petitioner secured an interlocutory decree of divorce from Boozer in December 1950, which became a final decree of divorce in December 1951. The property settlement agreement was incorporated in the interlocutory decree. Petitioner filed a joint Federal income tax return for the year 1950 signed only by herself. After the preparation of the return, Boozer agreed over the phone, at least twice, to go to his attorney's office to sign it but failed to keep the appointments. Held, petitioner and Boozer were entitled to file a joint Federal income tax return for the year 1950. Marriner S. Eccles, 19 T.C. 1049 (1953), affd. 208 F.2d 796 (C.A. 4, 1953). Held, further, the return which petitioner filed was, in fact, intended to be and was a joint return for herself and her husband.

This proceeding involves a deficiency in income tax in the amount of $9,591.45 and an addition to tax under section 294(d)(2) in the amount of $1,266.20 for the year 1950.

The issues to be decided are: (1) Whether petitioner was entitled to file a joint return with her deceased husband for the year 1950; and (2) if so, whether the return which she filed as a joint return but signed only by her was, in fact, a joint return.

Some of the facts were stipulated.

FINDINGS OF FACT.

The stipulated facts are so found and are incorporated herein by this reference.

Petitioner was a resident of Los Angeles, California, during the year in issue. The return filed by her for such year was filed with the former collector of internal revenue for the sixth district of California.

Petitioner and Edward Francis Boozer were married on September 23, 1948. Boozer had served in the United States Marine Corps during World War II, and had received serious head injuries in such service. He received 100 per cent disability compensation from the Veterans' Administration. Boozer was addicted to the excessive use of alcohol which continued during the course of his marriage to petitioner.

Petitioner secured an interlocutory decree of divorce from Boozer on December 12, 1950; a final decree of divorce was entered on December 18, 1951. Incident to such divorce proceedings, petitioner and Boozer, on November 10, 1950, entered into a property settlement agreement which was incorporated into such interlocutory decree. Petitioner was the beneficiary of five trust funds, the income from which in 1950 was approximately $80,000, and the settlement agreement provided that Boozer waived any claim previously asserted by him against the income from such trusts. The agreement also provided that petitioner pay Boozer the sum of $12,500 in lieu of all claims made by him against her for support and maintenance.

Petitioner and Boozer filed joint Federal income tax returns for the years 1948 and 1949. It was the understanding of petitioner, Boozer, and their respective attorneys that he would sign a joint Federal income tax return for 1950 when such return had been prepared. With reference to such returns, the agreement provided, in part, as follows:

SIXTH: Wife does hereby acknowledge that all Income Tax Returns filed by husband and wife jointly during the years of 1948 and 1949, and any income tax return that wife might in the future file for the year 1950, had to do with income received solely by the wife, namely, from a Trust Estate wherein she is a beneficiary. Wife does hereby agree to hold husband free and harmless and agrees to indemnify him from any claims made by the United States Treasury Department against husband, if any, resulting from the Returns hereinabove mentioned, and along these lines does hereby agree to indemnify husband against any reasonable expenses or reasonable attorneys' fees in the event he has to defend himself if any such claims should arise.

Prior to March 15, 1951, petitioner's accountant prepared a joint Federal income tax return for her and Boozer for the year 1950. Petitioner's attorney made a request through Boozer's attorney that Boozer sign such return. Boozer's attorney made at least two appointments with him for the return to be signed but Boozer never kept the appointments. Petitioner's accountant secured two extensions of time within which the return might be filed, and, on May 15, 1951, the return as prepared was filed with the collector still unsigned by Boozer.

Boozer had no taxable income in 1950. He subsequently left the State of California, and died in New Orleans, Louisiana, on November 16, 1952. The certified copy of his death record states that the cause of death was ‘Broncho Pneumonia; Myocardial Degeneration Alcoholism, Acute & Chronic.’

Petitioner, between April 3, 1950, and February 9, 1951, paid $18,000 as payments on estimated tax for 1950. The return filed for 1950 showed a total tax liability for such year of $29,511.94. The difference in such total tax liability and the amounts paid on declarations of estimated tax— $11,511.94—was paid on May 15, 1951, when the return was filed.

The respondent determined that the return which petitioner filed was her separate return since it was signed only by her and contained a report only of her separate income and deductions. The return which petitioner filed for 1950 was a joint income tax return for herself and her husband, Edward Francis Boozer.

OPINION.

RICE, Judge:

In support of his determination that the return in question was the individual return of petitioner rather than a joint return, respondent argues that petitioner and Boozer, in any event, were precluded from filing a joint return for 1950 because of the interlocutory decree of divorce granted during such year. The petitioner on the other hand, argues that our decision in Marriner S. Eccles, 19 T.C. 1049 (1953), affd. 208 F.2d 806 (C.A. 4, 1953), holds that an interlocutory decree of divorce does not constitute a legal separation under a decree of divorce or separate maintenance within the meaning of section 51(b) (5)(B) of the 1939 Code.¹

We agree with the petitioner that our decision in the Eccles case, while it dealt with an interlocutory decree of divorce granted by the courts of Utah, is equally controlling in the case before us here involving a similar California decree.

A case with facts almost identical to the one before us here was recently decided by the United States District Court for the Northern District of California. In Holcomb v. United States, 137 F.Supp. 619 (N.D., Calif. 1955), a husband and wife were separated in June 1950 and at that time executed a property settlement agreement which, similar to the one before us here, contained no provision for alimony or support, temporary or otherwise. In August 1951, the wife was awarded an interlocutory decree which incorporated such settlement agreement. The interlocutory decree became final in August 1952. The parties filed a joint return for 1951 which the Government contended they could not do because of the interlocutory decree. The District Court sai...