Irma J. White - Page 3

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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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