- 4 - 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 circumstancesPage: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011