Daye Calvert - Page 6

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          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.                                                                 











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