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(B) after there has been mailed to either spouse, with
respect to such taxable year, a notice of deficiency under
section 6212, if the spouse, as to such notice, files a
petition with the Tax Court within the time prescribed in
section 6213;
In the present case, petitioner received the notice of
deficiency issued by respondent, and he filed a timely petition
with this Court. Therefore, pursuant to section 6013(b)(2)(B)
petitioner is not entitled to make an election to file a joint
return with his spouse for the taxable year 2003. See Mischel v.
Commissioner, T.C. Memo. 1997-350. Accordingly, respondent’s
determination on this issue is sustained.
3. Earned Income Credit
As previously stated, petitioner claimed an earned income
credit for taxable year 2003 with KM and MH as the qualifying
children. In the notice of deficiency, respondent disallowed the
earned income credit in full.
Subject to certain limitations, an eligible individual is
allowed a credit which is calculated as a percentage of the
individual’s earned income. Sec. 32(a)(1). One such limitation
applies to married individuals. Section 32(d) provides: “In the
case of an individual who is married (within the meaning of
section 7703), this section shall apply only if a joint return is
filed for the taxable year under section 6013.” Section 7703
provides that “the determination of whether an individual is
married shall be made as of the close of his taxable year”.
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Last modified: May 25, 2011