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amount of unemployment compensation similarly to section
86(c)(1). Section 1.85-1(b)(4), Income Tax Regs., which was
still in effect during the year in issue, provided:
A taxpayer does not “live apart” from his or her spouse
at all times during a taxable year if for any period
during the taxable year the taxpayer is a member of the
same household as such taxpayer’s spouse. A taxpayer
is a member of a household for any period, including
temporary absences due to special circumstances, during
which the household is the taxpayer’s place of abode. A
temporary absence due to special circumstances includes
a nonpermanent absence caused by illness, education,
business, vacation, or military service.
We conclude that for purposes of section 86(c)(1)(C)(ii)
“living apart” means living in separate residences.
Petitioner contends that because he and his wife maintained
separate bedrooms this is sufficient to find that they “lived
apart”. We disagree. See Dawkins v. Commissioner, supra. We
decline to explore the quality of a marriage, or to infer some
form of constructive absence of one spouse, when the spouses live
under one roof. See Lyddan v. United States, supra at 876;
Chiosie v. Commissioner, supra.
Petitioner also argues that he merely “visited” his wife and
did not live with her. In Costa v. Commissioner, supra, we
concluded that intermittent visits to the taxpayer’s home by the
taxpayer’s spouse were sufficient to find that the spouse and the
taxpayer did not live apart. In the case at bar, petitioner’s
“visits” lasted in excess of 30 days. Even if we term
petitioner’s stay at the Boise address a visit, petitioner
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