Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
This is a petition to review a decision of the Tax Court of the United States.
The facts were stipulated. Sadie Corbett Hayes*fn1 is the widow of Alfred Leslie Hayes,*fn2 who died intestate on February 12, 1943. There has been no administration of Hayes' estate.
On March 6, 1943, petitioner filed, with the Collector for the District of Kansas, a joint return for 1942, including therein the separate incomes and deductions of each spouse. Petitioner signed her own name to the return, and also signed her husband's name, after which she wrote "(deceased), by Sadie Corbett Hayes (wife)." She paid $81.72, one-fourth of the tax due.
On June 23, 1943, petitioner received a letter from the Collector in which he advised her that the income tax return for a decedent must be signed by his personal representative, if one has been appointed.*fn3 A form, to be executed by such representative, was enclosed with the letter.
On August 11, 1943, petitioner filed another income tax return in which she reported only her separate income for the year 1942. The tax due was shown as $47.25, and this amount, plus interest and penalty, totaled $60.24. Petitioner claimed an overpayment of $21.48, on account of the $81.72 theretofore paid by her.
On October 23, 1943, petitioner received a letter from the Collector's office, in which it was stated that the joint return, disclosing a tax liability of $326.90, was a "legal return" and had been accepted as such, and that therefore, the claim for overpayment was denied.
On February 16, 1944, petitioner filed an income tax return for 1943, and in applying the provisions of the Current Tax Payment Act of 1943, 57 Stat. 126, 26 U.S.C.A. Int. Rev. Acts, p. 385, she used $47.25, the amount of tax reported due on the separate return, in determining her income and victory tax liability for 1943. As the result of this computation, petitioner reported an overpayment in the amount of $71.88.
On April 4, 1945, petitioner received a notice of deficiency from the Commissioner, stating that she owed a balance of $189.23 for 1943 income tax. This determination of the tax liability was based on the amount of tax due on the joint return filed for 1942. Petitioner then filed a petition with the Tax Court for a redetermination of the deficiency, contending that the liability for 1943 should be based on the amount of tax due on the separate return filed for 1942. The Tax Court held that, "So far as petitioner is concerned, the first return was a valid, binding and irrevocable election to file a joint return for her and her deceased husband for the calendar year 1942," and concluded that the amount of tax due on the joint return should be used in determining the amount of petitioner's tax liability for 1943.
Section 51(b) of the Internal Revenue Act of 1938, 52 Stat. 476, 26 U.S.C.A. Int. Rev. Code, § 51(b), provides in part as follows: "Husband and wife. - In the case of a husband and wife living together the income of each * * * may be included in a single return made by them jointly, in which case the tax shall be computed on the aggregate income, and the liability with respect to the tax shall be joint and several. * * *"
Treasury Regulations 111,*fn4 promulgated under the Internal Revenue Code, provide in part as follows:
" § 19.51-1. * * * (b) Joint returns. - A husband and wife, if living together at the close of the taxable year, may elect to make a joint return * * *.
"A joint return of a husband and wife * * * shall be signed by both spouses. An oath is not necessary, but both spouses shall verify the return as provided in section 51. If signed by one spouse as agent for the other, ...