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months of the taxable year, he or she must file a joint return
with the spouse to be entitled to the earned income credit.
During 2001, petitioner was married within the meaning of
section 7703 and resided at 4505 North 44th Street, Milwaukee,
Wisconsin (the 4505 residence). Petitioner’s husband (Mr. White)
moved out for a period of time and then moved back to the 4505
residence. Petitioner could not testify as to the dates he moved
in and out of the 4505 residence. Petitioner used a filing
status of “head of household” for her 2001 tax return.
Mr. White testified that he moved out of the 4505 residence
in 1998 and returned in November 2001. He further testified that
he used the filing status of “single” for his 2001 tax return.3
The evidence is not in dispute that Mr. White lived in the
4505 residence with petitioner during the last 2 months of 2001.
Accordingly, petitioner is not entitled to claim the earned
income credit.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.
3 It is not disputed that, if petitioner and Mr. White had
filed a joint return, their combined income would have exceeded
the income requirements for the credit. See sec. 32(b).
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Last modified: May 25, 2011