Jean Erick Fortius - Page 5

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          married at the close of 2002, he is not considered a head of                
          household.  Respondent’s determination on this issue is                     
          sustained.                                                                  
          2.   Earned Income Credit                                                   
               An eligible individual may be allowed a credit which is                
          calculated as a percentage of the individual’s earned income.               
          Sec. 32(a)(1).  In the case of an individual who is married, the            
          earned income credit is allowed only if a joint return is filed             
          for the taxable year under section 6013.  Sec. 32(d).  As                   
          mentioned above, petitioner did not file a joint return for 2002.           
               Section 6013(b)(1) provides generally that where a taxpayer            
          has filed a separate return for a taxable year and the time                 
          prescribed for filing has expired, the taxpayer nevertheless may            
          make a joint return with his spouse.  Petitioner and his wife               
          have not attempted to file a joint return, however, and the                 
          election under section 6013(b)(1) cannot be made after either               
          spouse timely petitions the Court in response to a notice of                
          deficiency for the year in issue.  Sec. 6013(b)(2)(B); Millsap v.           
          Commissioner, 91 T.C. 926, 929 (1988).  Respondent’s                        
          determination on this issue is sustained.                                   
          3.   Schedule C Deductions                                                  
               A taxpayer who is carrying on a trade or business generally            
          may deduct ordinary and necessary expenses paid or incurred in              
          connection with the operation of the business.  Sec. 162(a); FMR            






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