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(2) such individual furnishes over one-half of the cost
of maintaining such household during the taxable year,
and
(3) during the last 6 months of the taxable year, such
individual’s spouse is not a member of such household,
such individual shall not be considered as
married.
Petitioner has made vague and inconsistent assertions as to
when his wife left his household in 2001. He testified:
MR. DIAZ: I believe she left between June and
July of 2001. 2001, yes.
THE COURT: Has she ever returned?
MR. DIAZ: Never.
* * * * * * *
MR. DIAZ: * * * But she was not living with me
during the whole period of 2001, because, when I moved,
it was about six months that she was not even living
with me. She moved--she moved--she left the apartment
with her mother that came from Mexico and she decided
to leave.
Only in his answering brief does petitioner state categorically
that his wife left in June, asserting: “The commissioner makes
emphasis in the date in which my wife left the country to which
for me is not much of importance.” The assertion in petitioner’s
brief, however, cannot be treated as evidence. Rule 143(b). The
date on which petitioner’s wife left his household is not only
important; it is determinative. If petitioner’s wife left in
July rather than June, he is not entitled to the earned income
tax credit. See Becker v. Commissioner, T.C. Memo. 1995-177. In
the absence of reliable evidence that she left prior to July
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