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not married * * * if at any time during the taxable year his
spouse is a nonresident alien”. Sec. 2(b)(2)(C).
For purposes of Federal income taxation, an individual is a
nonresident alien if the individual is “neither a citizen of the
United States nor a resident of the United States”. Sec.
7701(b)(1)(B). To determine residency, an alien individual is a
resident of the United States if the individual meets the
“substantial presence test”. Sec. 7701(b)(1)(A)(ii). “[A]n
individual meets the substantial presence test * * * if--(i) such
individual was present in the United States on at least 31 days
during the calendar year, and” applying a mathematical formula,
was present during the current year and the preceding 2 years for
183 days or more. Sec. 7701(b)(3)(A). Ms. Akhter resided with
petitioner in the United States during all of 2001 and in the
preceding 2 years and is a resident alien. Petitioner,
therefore, was married and does not qualify for the head of
household filing status. Respondent’s determination is
sustained.
Earned Income Credit
An EIC is eligible to a married individual “only if a joint
return is filed for the taxable year under section 6013.” Sec.
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Last modified: May 25, 2011