Antonio O. Neal - Page 14




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          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 amount.  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(a)(1) provides that “the determination of whether an           
          individual is married shall be made as of the close of his                  
          taxable year” and that certain married individuals living apart             
          shall not be considered as married.                                         
               The parties agree that petitioner was still married to Ms.             
          Neal at the close of the taxable year 2003, and for reasons                 
          previously stated, the Court is not satisfied that petitioner               
          was living apart from Ms. Neal in 2003.  Accordingly, since                 
          petitioner did not file a joint return for taxable year 2003, is            
          still married to Ms. Neal, and cannot prove that he was separated           
          from Ms. Neal in 2003, he is not entitled to an earned income               
          credit for taxable year 2003.  Respondent’s determination on this           
          issue is sustained.                                                         










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