dissenting: This is supposed to be “a question of fact,” Arlington F. Brown, 24 T. C. 256, 265, “the answer” to which is supposed to rest “on a determination of the intent of the taxpayer. Myrtle O. Calhoun, 23 T. C. 4 (1954).” Elsie S. Bour, 23 T. C. 237, 239.
The factual issue here apparently narrows to whether petitioner should be held to have signed the joint return. If she did not, it was not her return and she would not be liable on it. Regs. 111, sec. 29.51-1. See McCord v. Granger, (C. A. 3) 201 F. 2d 103. Cases holding that the physical presence of the wife’s signature is unnecessary are typified by W. L. Kann, 18 T. C. 1032, 1015, affd. (C. A. 3) 210 F. 2d 247, certiorari denied 347 U. S. 967, where we said: “Petitioner * * * having failed to take the stand, or produce any evidence on her own behalf, has not sustained her burden of proof that these were not joint returns.” Of course there would be no denial from her under oath that she had authorized someone else, usually her husband, to sign, the return. That is the origin of the “tacit consent” theory. There can be no question here that petitioner did not physically sign the return but it is apparently concluded that she authorized someone to do so for her. She testified repeatedly and unequivocally that she did not authorize or ratify the signing or filing of any return and, as the one who heard and observed the witnesses, I believe her. My finding of fact would accordingly be that she did not sign the return nor authorize its signature, that she did not intend to file a joint return, and that accordingly she did not do so.
The Opinion apparently accepts Salisbury’s testimony as true. Some of the factual conclusions can be derived from no other source. Yet at a number of points his testimony conflicted with that of petitioner. As the one who heard and observed the witnesses, I believe petitioner was telling the truth.1 My findings of fact would accordingly be quite different from those now made by Judges who did not participate in the trial.
It is not clear to me whether the present Opinion presupposes that the petitioner was not telling the truth, or whether even if she was, a joint return must be presumed as a matter of law to have resulted. While it is difficult to be sure what the theory of the present Opinion is, it may be one of misrepresentation or estoppel. The philosophy seems to go like this: A return apparently signed by the wife directly or by her agent was accepted as a joint return by the respondent. He relied on its appearance and acted upon it and, accordingly, any detriment that he or the Treasury suffered must be recovered from the innocent bystander. If this return was unauthorized as a joint return, as I think it was and as in fact the evidence indicates it was,2 then the missing taxes should have been sought from the husband, who did sign the return. But it does not make a joint return out of one that was separate nor justify imposing this unconscionably heavy burden upon a nonparticipant and no case can be produced to authorize it.
Unless we are making new law and overthrowing the only existing precedents, there are but two other grounds upon which this result could rest if regarded as a legal question. An item of petitioner’s income was included on the return when it was filed without her knowledge or consent. This is not enough to create a joint return in the absence of such an intention. Alma Helfrich, 25 T. C. 404, 407; McCord v. Granger, supra, at 106; Elsie S. Bour, supra; Arlington F. Brown, supra.
Of course petitioner should have filed a separate return. So should the women in the cases cited, but the fact that petitioner had taxable income and failed to file a return does not justify the conclusion, without more, that a joint return was intended. Arlington F. Brown; Myrtle O. Calhoun; Elsie S. Bour; McCord v. Granger, all supra. Petitioner had no deductions of any kind. Her salary, although included by the accountant without her consent or knowledge on the joint return, was subject to withholding. Petitioner had in mind that “generally my withholding just took care of the amount that was due.” This seems to me a sufficiently reasonable cause for the omission to file a separate return. Sec. 291, I. R. C. 1939. If it is not, and she is liable for penalties, these would be prescribed by statute as 25 per cent of the tax due — in this case, approximately $5. Instead, the penalty determined against her, including one for a fraud in which concededly she did not participate, was $4,621.20, much more than her total income. But whatever the statutory penalty for failing to file a return if due, the cases cited hold clearly that it does not justify imputing an intention to file a joint return if the disavowal of such an intent is believed.
MulROney, J., agrees with this dissent.This applies, for example, to her statement that she endorsed the refund check ■without knowing that it came from a joint return and that she received none of its proceeds.
Salisbury testified, for example:
Q. But you didn’t deliver anything to Mrs. Heim ?
A. No, I never do in the case of a joint return, I deliver it to the people who I get an order on.
Q. And you didn’t get an order from Mrs. Heim ?
A. No.