Elpidio Lozoya - Page 5

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          joint return with him.  Section 7703(b), however, allows a                  
          married man to file as if he were unmarried when he:  (a) files a           
          separate return, (b) pays over half the cost of maintaining his             
          household during the year, and (c) uses that household as his               
          principal place of abode together with at least one dependent               
          child, if (d) “during the last 6 months of the taxable year, such           
          individual’s spouse is not a member of such household.”  The                
          parties disagree only about whether the Lozoyas shared the same             
          household for the last 6 months of 2001.                                    
               What does it mean to be a “member of such household?”  A               
          regulation tells us that a “nonpermanent failure to occupy such             
          household as his abode by reason of illness, education, business,           
          vacation, or military service shall be considered a mere                    
          temporary absence due to special circumstances.”  Sec. 1.7703-              
          1(b)(5), Income Tax Regs.  And even marital strife so bad that a            
          husband demands that his wife leave is not sufficient if they               
          continue to “live under one roof.”  See Becker v. Commissioner,             
          T.C. Memo. 1995-177.                                                        
               The issue comes down to a judgment on the credibility of               
          Lozoya and his son.  Both testified, and we find both to be                 
          honest witnesses.  Though neither remembered the precise date               
          that Mrs. Lozoya left the house in 2001--Mr. Lozoya testified               
          that she left in “June 2001” and Luis said that she left “before            
          school let out for summer vacation”--we find that Mrs. Lozoya was           






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