Mary J. Toney - Page 4

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          undisputed that petitioner was married to Mr. Toney at the close            
          of 2001.                                                                    
               Under certain circumstances, in determining proper filing              
          status, a married taxpayer may be treated as unmarried.  Secs.              
          2(c), 7703(b).  To qualify for this treatment, the taxpayer must,           
          among other things, provide over half the cost of maintaining a             
          household that is the principal place of abode for a child who              
          qualifies as the taxpayer’s dependent (subject to certain                   
          exceptions not relevant here).  Sec. 7703(b)(1).  As previously             
          discussed, petitioner’s children do not qualify as her dependents           
          for 2001.  Accordingly, petitioner cannot be treated as unmarried           
          pursuant to section 7703(b), and petitioner’s proper filing                 
          status for 2001 is married filing separately.                               
          3.   Earned Income Credit                                                   
               To be eligible to claim an EIC, a married individual                   
          generally must file a joint return (or else satisfy the section             
          7703(b) requirements to be treated as unmarried).  Sec. 32(d).              
               Petitioner did not file a joint return.  As just discussed,            
          she does not qualify to be treated as unmarried pursuant to                 
          section 7703(b).  Accordingly, we sustain respondent’s                      
          disallowance of the claimed EIC.                                            

                                                  Decision will be entered            
                                             for respondent.                          







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