- 21 -
to the dependency exemptions under section 152(a)(9), he would
still not qualify, as a matter of law, as a head of household
because of the limitation set forth in section 2(b)(3)(B)(i).
Accordingly, petitioner is not entitled to head-of-household
filing status but rather must use "single" filing status for
taxable year 1993.
1994 and 1995
For taxable years 1994 and 1995, petitioner claims that he
is entitled to married filing joint return status. In the notice
of deficiency, respondent determined that petitioner's filing
status was "married filing separately".
Section 1(a) provides that the filing status married filing
joint return applies only to "every married individual * * * who
makes a single return jointly with his spouse under section
6013". From this language, it is clear that married taxpayers
who fail to file returns are not entitled to married filing joint
return tax rates. See Martinez v. Commissioner, T.C. Memo. 1998-
199, affd. 198 F.3d 242 (5th Cir. 1999); Collins v. Commissioner,
T.C. Memo. 1994-409; Ebert v. Commissioner, T.C. Memo. 1991-629,
affd. without published opinion 986 F.2d 1427 (10th Cir. 1993);
Hess v. Commissioner, T.C. Memo. 1989-167; see also Phillips v.
Commissioner, 86 T.C. 433, 441 n.7 (1986), affd. in part and
revd. in part on another ground 851 F.2d 1492 (D.C. Cir. 1988).
The parties stipulated that petitioner failed to file returns
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