Holcomb

This is an action against the United States of America for the recovery of an alleged overpayment of federal income; taxes in the amount of $8,293.70, plus in- - terest. The sole issue involved is wheth-, er, under the facts of the case, plaintiffs were entitled to file a joint return for the calendar year 1951 pursuant to the provisions of Section 51 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 51 .

The stipulated facts are: the plaintiffs were married on December 1, 1923, and lived together as man and wife until approximately June 28, 1950. On or about the latter date the taxpayers separated by mutual consent and executed a prop-' erty settlement agreement, which agree-, ment made no provision for alimony or support payments temporary or otherwise. On or about August 13, 1951, Idris M. Holcomb was awarded an interlocutory decree of divorce, incorporating the above mentioned property settlement, by the Superior Court of the State of California, which decree became final on August 18,1952. Plaintiffs filed separate' returns for the calendar year 1951. On June 23, 1954, plaintiffs filed a joint return for 1951 and a claim for a refund of $8,293.70 which was denied.

The…