Zoilo A. Urena - Page 5

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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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