Donnell Floyd - Page 9

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          filing status is married filing separately.  See sec. 1(d).                 
          Respondent is sustained on this issue.                                      
               The final issue for decision is whether petitioner is                  
          entitled to an earned income credit.  Section 32(a) provides for            
          an earned income credit in the case of an eligible individual.              
          However, a married individual cannot claim the earned income                
          credit if his filing status is married filing separately.                   
          Section 32(d) provides:  “In the case of an individual who is               
          married (within the meaning of section 7703), this section shall            
          apply only if a joint return is filed for the taxable year under            
          section 6013.”  Since the Court has concluded that petitioner was           
          considered married in 1998, and no joint return was filed for               
          that year, petitioner is not entitled to the earned income                  
          credit.  Respondent is sustained on this issue.2                            

               2    The Internal Revenue Service Restructuring & Reform Act           
          of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726, added                   
          sec. 7491, which, under certain circumstances, places the burden            
          of proof on the Secretary with respect to any factual issue                 
          relevant to ascertaining a taxpayer’s liability for taxes in                
          court proceedings arising in connection with examinations                   
          commencing after July 22, 1998.  The examination of petitioner’s            
          return commenced after July 22, 1998.  Nevertheless, the burden             
          of proof with respect to the items of deficiency did not shift to           
          respondent.  Petitioner has neither alleged that sec. 7491 is               
          applicable nor established that he complied with the requirements           
          of sec. 7491(a)(2)(A) and (B).  See Higbee v. Commissioner, 116             
          T.C. 438 (2001).  Moreover, even if respondent carries the burden           
          of proof, the Court is satisfied that such burden has been met.             

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