Commissioner of Internal Revenue v. William G. Ostler

The Commissioner seeks review of a decision of the Tax Court holding that there was no deficiency in respondent’s income tax for 1950. ’

In that year, Frances S. Ostler, then the taxpayer’s wife, obtained from him in a California court an interlocutory decree of divorce. The decree became final in 1951. Taxpayer and Frances filed a joint income tax return for 1950.

The Commissioner determined a deficiency on the ground that § 51(b) (5) (B) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 51 (b) (5) (B) precludes the filing of a joint return under § 51(b) (1) of the Code while the interlocutory divorce decree was in effect. On petition for- redeterniination the Tax Court held for the taxpayer-on the authority of Eccles v. Commissioner, 19 T.C. 1049 , affirmed, 4 Cir., 1953, 208 F.2d 796 .

The Tax Court has held to the same effect in Commissioner of Internal Revenue v. Evans, 19 T.C. 1102 , affirmed by the Tenth Circuit, 1954, 211 F.2d 378 . See also for the same construction of the Code provision Holcomb v. United States, D.C.N.D.Cal., 137 F.Supp. 619 , affirmed by us this day.

No judicial holdings to the contrary have been called- to our attention. Seeing no sufficient…