Thomas William McAdams - Page 2




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                    Held:  For purposes of sec. 86(c)(1)(C)(ii),                      
               I.R.C., “live apart” means living in separate                          
               residences.  P and his wife lived in the same residence                
               at least 30 days during the taxable year in issue.                     
               Accordingly, P did not live apart from his spouse at                   
               all times during the taxable year, and P’s “base                       
               amount” pursuant to sec. 86(c)(1), I.R.C., is zero.                    
                    Held, further, sec. 86, I.R.C., is not                            
               unconstitutional.                                                      
               Thomas William McAdams, pro se.                                        
               Kay Hill, for respondent.                                              


               VASQUEZ, Judge:  Respondent determined a deficiency of                 
          $1,106 in petitioner’s Federal income tax for 1998.  After                  
          concessions,1 the issues for decision are:  (1) Whether                     
          petitioner did not “live apart” from his spouse at all times                
          during 1998, and (2) whether section 862 is unconstitutional.               
                                  FINDINGS OF FACT                                    
               Some of the facts have been stipulated and are so found.               
          The stipulation of facts and the attached exhibits are                      
          incorporated herein by this reference.  At the time he filed the            
          petition, petitioner resided in Ninilchik, Alaska.                          
               As of the time of trial, petitioner was 74 years old and               
          retired from the U.S. military.  Petitioner has a bachelor’s                


               1  Petitioner concedes that his correct amount of interest             
          income for 1998 was $530 and not $478.64 as reported on his 1998            
          Federal individual income tax return.                                       
               2 Unless otherwise indicated, all section references are to            
          the Internal Revenue Code in effect for the year in issue.                  




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