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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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