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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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