Mahmud Ahmed - Page 4

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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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