Myron R. Struck and Thelma C. Struck - Page 16

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          Forms 2555-EZ for 2001 were silent as to December 2001, and                 
          petitioners made mistakes designating applicable periods on the             
          Forms 2555-EZ that they initially filed for both 2001 and 2002.             
               Also, because of the shift to respondent of the burden of              
          proof, respondent bears the burden to prove that petitioners were           
          not in a foreign country for the first 19 days of December 2001.            
               Respondent argues further that for 2001 there are                      
          insufficient facts in evidence to evaluate the requirements of              
          the foreign earned income exclusion under any applicable period             
          other than January 1 to December 31, 2001.                                  
               We disagree.  Petitioners’ log, Myron’s testimony, and the             
          Navy review of the log establish petitioners’ presence in foreign           
          countries for the applicable period we utilize for 2001 -- namely           
          January 7, 2001, to January 6, 2002, as well as for 2002.                   
               Respondent also makes a procedural argument as to why we               
          should analyze petitioners’ qualifications for the exclusion only           
          under the applicable periods petitioners indicated on their                 
          initially filed Forms 2555-EZ.  Respondent argues that our                  
          utilization of a different applicable period for 2001 to measure            
          petitioners’ foreign physical presence constitutes a new issue              
          not raised by the pleadings.                                                
               Although we have adjusted petitioners’ applicable period for           
          2001, the issue remains what it has always been:  Do petitioners            








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