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Although petitioner testified that she has never been
married to Mr. Her, she filed a return as married, filing
jointly, with Mr. Her, for the taxable years 1996, 1997, and
2000. Mr. Her received his Form W-2 statements and unemployment
benefits at petitioner’s residence in 2001. A 2003 property
transfer record recites that petitioner was a “married woman”.
The evidence leads the Court to conclude that petitioner was
married in 2001, despite her testimony to the contrary. Under
section 7703(b)(3), a taxpayer who maintains as a home a
household that constitutes the principal place of abode for more
than one-half of the year of a child for whom the taxpayer is
entitled to a deduction under section 151 is deemed to be “not
married” if, during the last 6 months of the year at issue, the
other spouse did not reside with the taxpayer. As previously
discussed, petitioner did not establish that she maintained a
household or that she is entitled to the dependency exemptions.
Petitioner, therefore, does not satisfy the requirements of
section 7703(b). The Court holds that petitioner is not entitled
to the earned income credit because she failed to file a joint
return with Mr. Her.
Section 21(a) generally provides allowance for a credit
against the tax to any individual who maintains a household that
includes as a member one or more qualifying individuals. The
term “qualifying individual”, under section 21(b), includes a
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Last modified: May 25, 2011