Xhevair Ferko - Page 5

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          the individual furnishes over one-half the cost of maintaining              
          such household during the taxable year; and (4) for the last 6              
          months of the taxable year, the individual’s spouse is not a                
          member of such household.                                                   
               Petitioner and Mrs. Ferko were married throughout the 2004             
          tax year.  Petitioner, his spouse, and their children lived in              
          the same house from January 2004 until they moved on November 21,           
          2004.  After the move, they all continued to reside together in             
          the new residence through the remainder of 2004.  Petitioner                
          contends that although he and his wife shared these houses, since           
          2003 they have lived as if they were separated and maintained               
          separate households.                                                        
               The pivotal issue is whether petitioner and Mrs. Ferko were            
          living apart in separate households.  If they were not living               
          apart in separate households, then section 7703(b) would not have           
          applied and petitioner’s filing status was married filing                   
          separately and not head of household.                                       
               The concept of “living apart” has been considered by this              
          and other courts.  Generally, “living apart” connotes living in             
          separate residences.  Lyddan v. United States, 721 F.2d 873, 876            
          (2d Cir. 1983); Washington v. Commissioner, 77 T.C. 601, 604                
          (1981).  The Court of Appeals for the Eighth Circuit disagreed              
          with the general view of “living apart”, finding that such a                
          determination should be made based on the facts and circumstances           

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