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not living under the same roof with them, nor was she absent only
temporarily “due to special circumstances.” Although she would
visit the children occasionally, she was simply not a member of
their household during the last 6 months of the year.
The Commissioner disbelieved Lozoya because it was only at
trial that he produced his son to testify about when his wife
left. This doubt is understandable--most people would try to
provide what information they could to the IRS as soon as
possible to avoid a trial. But Lozoya explained that he had
numerous phone calls with several IRS employees about at least
three different tax years. Not all the employees seemed to know
about the information he had sent in for which years on which
contested items; and the fact that Lozoya's native language isn’t
English is probably a further reason why this case ended up being
tried with only testimonial proof on either side of this issue.
Based on a preponderance of that evidence, we find that
Lozoya qualifies to be treated as unmarried for 2001. This means
that he meets one requirement for filing as head of household.
Another requirement for that status is that he provide a home for
at least one child. The record shows that he provided a home to
both his children, and they are both “qualifying children.” Sec.
2(b)(1)(A). Lozoya can thus claim head-of-household filing
status for 2001.
Since Lozoya qualifies for that filing status, it follows
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