- 5 -
wife, and occasionally visited his wife, does not establish that
petitioner and his spouse were “living apart”. In McAdams v.
Commissioner, supra at 378, the Court noted: “Petitioner also
argues that he merely ‘visited’ his wife and did not live with
her. In Costa v. Commissioner, * * * [T.C. Memo. 1990-572], we
concluded that intermittent visits * * * [sufficed to establish
that the spouses] did not live apart.” The Court also cited
section 1.85-1(b)(4), Income Tax Regs., relating to employment
compensation, which states:
A taxpayer does not “live apart” from his or her spouse at
all times during a taxable year if for any period during the
taxable year the taxpayer is a member of the same household
as such taxpayer’s spouse. A taxpayer is a member of a
household for any period, including temporary absences due
to special circumstances, during which the household is the
taxpayer’s place of abode. A temporary absence due to
special circumstances includes a nonpermanent absence caused
by illness, education, business, vacation, or military
service.
The Court concludes that petitioner in this case did not
live separate and apart from his wife during the year at issue.
Therefore, $9,604 of the Social Security benefits paid to him
that year constituted gross income. Respondent is sustained on
this issue.
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011