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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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Last modified: May 25, 2011