Manuel Julian Diaz - Page 4

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                    (2) such individual furnishes over one-half of the cost           
                    of maintaining such household during the taxable year,            
                    (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                        
               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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