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Discussion
Elpidio and Rosa Lozoya were legally married throughout
2001. Mr. Lozoya was self-employed as a handyman and earned
about $10,000. Mrs. Lozoya, an illegal alien in 2001, was a
homemaker while she lived with him and their children. No one
disputes that during the first part of 2001, they lived together
with their two school-age children.
Filing a joint return can be difficult when one spouse is
an illegal alien, and so not entitled to the Social Security
number ordinarily required to process a return.2 On his 2001 tax
return, Lozoya checked the box marked “single” as his filing
status. He did not claim either of his children as a dependent,
but he did claim an EITC. When the IRS audited his return, the
revenue agent changed Lozoya’s filing status to married-filing-
separately because he was married at the end of 2001.3 This
change then triggered a disallowance of the EITC because a
married man must file a joint return to claim it. Sec. 32(d).
1(...continued)
2001.) Because Lozoya chose small case status, this decision is
not reviewable by any other court, and this opinion should not be
cited as precedent.
2 The Commissioner grants individual taxpayer
identification numbers to aliens who apply for one, see generally
sec. 301.6109-1, Proced. & Admin. Regs. Mrs. Lozoya never did.
3 The Commissioner also imposed an addition to tax for late
filing, but has now conceded that issue.
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Last modified: May 25, 2011