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determined in the notice of deficiency, or single as claimed on
petitioner’s Form 1040.2
Petitioner testified that he obtained a divorce from his
first wife, Ms. Rodriguez, in 1998. Petitioner also testified
that he never married Ms. Hernandez, Gabriella’s mother, and that
he was single during the year in issue. This Court finds
petitioner’s testimony on this issue to be credible. There is
nothing in the record to indicate that petitioner was married
during the year in issue.
Respondent claims that his determination in the notice of
deficiency is based on petitioner’s 2001 tax return. However, as
discussed above, such contention is unsupported by any evidence.
Neither petitioner’s 2001 nor his 2002 Federal income tax return
was offered into evidence to support respondent’s contention.
Upon the basis of the record, this Court finds that petitioner’s
credibility has not been impeached by any evidence offered by
2In the notice of deficiency, respondent determined that
petitioner’s filing status was married filing separately and
computed the deficiency accordingly. Respondent contends that
petitioner did not dispute this adjustment in his petition to
this Court. Therefore, respondent contends that such adjustment
should be sustained.
Although petitioner did not raise the issue in his petition
to this Court, we interpret his testimony as to call such issue
into question. The Court does not find that a consideration of
petitioner’s filing status as an issue in this case would result
in prejudice to respondent. Respondent, before trial, was aware
of petitioner’s contention as to his filing status in the taxable
year 2002. Accordingly, the issue of petitioner’s filing status
during the year in issue will be considered.
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Last modified: May 25, 2011