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Respondent determined a deficiency of $3,748 in petitioner’s
2001 Federal income tax. The issue is whether petitioner is
entitled to an earned income credit in the same amount.
Petitioner resided in Milwaukee, Wisconsin, at the time she filed
her petition.
The relevant facts and discussion of law are combined
because of the nature of the resolution of the issue.2 Section
32(a) provides for a so-called earned income credit. Section
32(d) provides that “In the case of an individual who is married
(within the meaning of section 7703), this section shall apply
only if a joint return is filed for the taxable year under
section 6013”. It is undisputed that petitioner was legally
married and was not legally separated under a decree of divorce
or separate maintenance at the end of the 2001 taxable year. See
sec. 7703(a). As relevant here, section 7703(b), however,
provides that if an individual is married and otherwise satisfies
the residency and support requirements of section 7703(b)(1) and
(2) and “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.” In other words,
if a taxpayer, claiming the earned income credit, is married and
his or her spouse lived in his or her residence for the last 6
2 While petitioner’s marital status is a factual issue,
sec. 7491, concerning burden of proof, has no bearing on this
case.
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Last modified: May 25, 2011