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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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