Mohamed Barrie - Page 9




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          In addition, as we concluded above, petitioner did not maintain             
          as his home a household which constituted for more than one-half            
          of 1999 the principal place of abode of a dependent under section           
          151.  Accordingly, we conclude that petitioner is not entitled to           
          the claimed head-of-household filing status.4                               
               The next issue is whether petitioner is entitled to the                
          claimed EIC of $3,613.  Under section 32(d), in the case of an              
          individual who is married (within the meaning of section 7703),             
          the individual may be entitled to an EIC under section 32 only if           
          a joint return is filed for the taxable year under section 6013.            
               The determination of whether an individual is married is               
          made at the close of the taxable year.  Sec. 7703(a)(1).  An                
          individual legally separated from his spouse under a decree of              
          divorce or of separate maintenance shall not be considered as               
          married.  Sec. 7703(a)(2).  An individual who is living apart               
          from his spouse but not legally separated under a decree of                 
          divorce or separate maintenance shall be considered as married.             
          Sec. 1.7703-1(a), Income Tax Regs.  Accordingly, under section              
          7703(a) petitioner is considered married.                                   
               Alternatively, section 7703(b) provides that a taxpayer who            
          is married under section 7703(a) and who files a separate return,           


               4  We note that respondent disallowed the head-of-household            
          filing status in the notice of deficiency and treated petitioner            
          as single.  Respondent does not seek to claim an increased                  
          deficiency which might result from a change in filing status to             
          married filing separately.                                                  





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